Howell v. Jones

• Decision Date: 24 November 1891
• Citation: 13 S.E. 889,109 N.C. 102
• Parties: Howell et al. v. Jones et al.
• Court: North Carolina Supreme Court

13 S.E. 889

109 N.C. 102

Howell et al. v. Jones et al.

Supreme Court of North Carolina

November 24, 1891

Appeal from superior court, Stanly county; Jesse F. Graves, Judge.

Action by Howell and Hardister against W. C. Jones, P. S. Jones, and the Hearne Consolidated Mining Company. Judgment for plaintiffs. Defendants appeal. Appeal dismissed.

The appeal will be dismissed, where the record does not show service of notice of appeal.

Montgomery & Crowell, for appellants.

James A. Lockhart, for appellees.

Clark, J.

There is no case on appeal settled by the judge nor signed by the parties, and nothing to show that any appeal was taken in open court, nor any service of notice, if appeal was taken out of court. There is a "case on appeal," signed only by appellants' counsel, but, as it does not appear that it was served on appellee within the required time, nor, indeed, at all, it must be treated as a nullity. Peebles v. Braswell, 107 N.C. 68, 12 S.E. Rep. 44. The appeal would not be dismissed on this ground, as it may be there are errors on the face of the record proper, as want of jurisdiction, or complaint not stating a cause of action, and the proper motion and order would be to affirm the judgment. It further fails to appear, however, that an appeal was taken or notice of appeal given. In such case the appeal must be dismissed. Manufacturing Co. v. Simmons, 97 N.C. 89, 1 S.E. Rep. 923. In this last case it is said: "It does not appear [in the record] that an appeal was taken. It does not so appear in terms, nor is there any entry of record from which it may be inferred. It is not sufficient that the appellant intended to appeal, as perhaps he did, but it must appear of record that he did in fact appeal. This is esential to make the appeal effective, and put this court in relation with the superior court. Code, §§ 549, 550; Moore v. Vanderburg, 90 N.C. 10; Spence v. Tapscott, 93 N.C. 246; McCoy v. Lassiter, 94 N.C. 131; Brooks v. Austin, Id. 222." Appeal dismissed.