Opinion
(Filed 24 April, 1929.)
Appeal and Error E a — Complaint is necessary part of record proper.
Under Rule 19, section 1, the complaint is a necessary part of the record proper, and when it is not contained therein, the case on appeal will be dismissed.
APPEAL by defendants from Stack, J., at September Term, 1928, of MOORE.
Johnson Johnson for plaintiffs.
J. A. D. Parrish and L. B. Clegg for defendants.
It appears from the statement of case on appeal, which constitutes the entire record sent to this Court, that summons in an action entitled as above, was issued out of the Superior Court of Moore County 29 March, 1928, and that thereafter, 25 July, 1928, two of the defendants, E. M. Howard and United States Land Company, through their counsel, entered a special appearance and move, first, that the action be dismissed for want of proper service as to them; and, second, that the action be moved to Carteret County for trial, if not dismissed. Both motions were overruled and the defendants appeal. The complaint is not sent up as a part of the record as required in all cases, and we are not able to determine the nature and character of the action.
It is provided by Rule 19, sec. 1, of the Rules of Practice in the Supreme Court that "the pleadings on which the case is tried, the issues and the judgment appealed from shall be a part of the transcript in all cases." 192 N.C. p. 847. The appeal, therefore, must be dismissed for failure to comply with the rules, or to send up the necessary parts of the record proper. S. v. McDraughon, 168 N.C. 131, 83 S.E. 181; Cressler v. Asheville, 138 N.C. 482, 51 S.E. 53; Sigman v. R. R., 135 N.C. 181, 47 S.E. 420; Jones v. Hoggard, 107 N.C. 349, 12 S.E. 286.
As to whether the defendants did not waive their special appearance and enter a general appearance by moving for change of venue as a matter of right, see Motor Co. v. Reaves, 184 N.C. 260, 114 S.E. 175.
Appeal dismissed.