Randleman Mfg. Co. v. Simmons

• Decision Date: 05 April 1887
• Citation: 1 S.E. 923,97 N.C. 89
• Parties: RANDLEMAN MANUF'G CO. v. SIMMONS.
• Court: North Carolina Supreme Court

1 S.E. 923

97 N.C. 89

RANDLEMAN MANUF'G CO. v. SIMMONS.

Supreme Court of North Carolina

April 5, 1887

Appeal from superior court, Montgomery county.

Stipulations between counsel as to the mode of taking and perfecting appeals will not be noticed in the supreme court of North Carolina, unless in writing, and signed by the counsel of both parties.

Fuller & Snow, for plaintiff.

S. J Pemberton, for defendant.

MERRIMON J.

The appellee moved to dismiss this supposed appeal upon the ground that no case stated or settled on appeal appears in the record. Manifestly this is not ground for such motion. The appeal, properly taken and perfected, brings the action into this court, whether errors be assigned or not. The assignment of errors in a case stated or settled is not essential to the appeal. Besides, errors might be assigned in the record proper, in which case a case stated or settled would be necessary. But it is not essential to the appeal that error shall be assigned at all. State v. Crook, 91 N.C. 536; State v. Byrd, 93 N.C. 624; Neal v Mace, 89 N.C. 171. In the absence of error assigned, the appellant might move in this court to dismiss the action because the court had not jurisdiction, or because the "complaint does not state facts sufficient to constitute a cause of action." These are objections that may be taken at any time in the court below, or in this court, on motion, and without demurrer or answer or error assigned. Williamson v. Canal Co., 78 N.C. 156; Meekins v. Tatem, 79 N.C. 546.

In the absence of error assigned, the proper motion of the appellee in this court is to affirm the judgment. This motion might be made here, and perhaps allowed but for the fact that, on looking into the transcript of the record, we find that it does not appear 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. This is essential 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, 92 N.C. 576; McCoy v. Lassiter, 94 N.C. 131; Brooks v. Austin, Id. 222.

We find in the transcript what purports to be the case stated on appeal, signed by the appellant's counsel; but it does not appear that this statement was served upon the respondent (appellee) within five days, as required by the statute, (Code, § 550,) or at all, or that he or his counsel ever saw the same, or had any notice in any way of it, or ever assented thereto. This was necessary to give the statement any effect whatever.

It...