Hicks v. Westbrook

• Decision Date: 09 November 1897
• Citation: 28 S.E. 188,121 N.C. 131
• Parties: HICKS v. WESTBROOK.
• Court: North Carolina Supreme Court

28 S.E. 188

121 N.C. 131

HICKS v. WESTBROOK.

Supreme Court of North Carolina

November 9, 1897

Appeal from superior court, Pender county; McIver, Judge.

Action by R. W. Hicks against E. A. Westbrook, administratrix. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Where a dispute arises in a trial court as to whether there has been service on appellee of appellant's case on appeal within the statutory time, and the court finds that there has not, it may properly direct appellant's case to be stricken from the files.

F. R. Cooper, for appellant.

Frank McNeill and J. D. Bellamy, for appellee.

CLARK, J.

If there was any dispute of fact as to whether there was service in time, it was proper that it should be submitted to the court below (Cummings v. Hoffman, 113 N.C. 267, 18 S.E. 170; Walker v. Scott, 102 N.C. 487, 9 S.E. 488); and, his honor having found as a fact that there was no service of the appellant's case in the statutory time, he properly directed the appellant's "case on appeal" to be stricken from the files. This order being excepted to, the clerk sent up "appellant's case." "There being a statement of case on appeal signed only by the appellant's counsel, but nothing to show that it was served within the time, or indeed at all, upon the appellee or his counsel," it is a nullity. Peebles v. Braswell, 107 N.C. 68, 12 S.E. 44; Manufacturing Co. v. Simmons, 97 N.C. 89, 1 S.E. 923; Howell v. Jones, 109 N.C. 102, 13 S.E. 889. The absence of a case on appeal does not entitle the appellee to have the appeal dismissed, but, there being no error on the face of the record proper, the judgment below is affirmed. McNeill v. Railroad Co., 117 N.C. 642, 23 S.E. 268; Smith v. Smith, 119 N.C. 314, 25 S.E. 878; and cases cited under subhead "No Case on Appeal," Clark's Code, p. 582, and supplement to same, p. 89. The reason of this is that though there is no "case on appeal," which alone could show errors and exceptions on the trial, yet if, upon inspection of the record proper (Code, § 957; Thornton v. Brady, 100 N.C. 38, 5 S.E. 910; Upper Appomattox Co. v. Buffalo [at this term] 27 S.E. 999), the court had no jurisdiction, or a cause of action was not stated, the judgment below could not be sustained. Affirmed.