Shaw v. Hudson, 8021DC305
| Decision Date | 04 November 1980 |
| Docket Number | No. 8021DC305,8021DC305 |
| Citation | 49 N.C.App. 457,271 S.E.2d 560 |
| Court | North Carolina Court of Appeals |
| Parties | Martha A. SHAW, d/b/a Shaws Furniture Store v. Vernell HUDSON. |
Kennedy, Kennedy, Kennedy & Kennedy, by Harold L. Kennedy, III, Winston-Salem, for plaintiff-appellant.
Legal Aid Society of Northwest North Carolina, Inc., by Margot Roten and Benjamin Erlitz, Winston-Salem, for defendant-appellee.
The clear issue before us in this case is whether the Rules of Appellate Procedure require service of notice of appeal either before filing or on the same day notice is filed. Plaintiff contends that so long as the notice of appeal is served within ten days of filing, it is timely served. We reject this argument.
Rules 3 and 26 of the Rules of Appellate Procedure control. Rule 3(a), applicable in this case, is as follows:
(a) From Judgments and Orders Rendered in Session. Any party entitled by law to appeal from a judgment or order of a superior or district court rendered in a civil action or special proceeding during a session of court may take appeal by
.....
(2) filing notice of appeal with the clerk of superior court and serving copies thereof upon all other parties within the time prescribed by subdivision (c) of this rule.
Rule 3(e) provides (e) Service of Notice of Appeal. Service of copies of the notice of appeal may be made as provided in Rule 26 of these rules.
Rule 26(b), applicable in this case, provides:
(b) Service of All Papers Required. Copies of all papers filed by any party and not required by these rules to be served by the clerk shall, at or before the time of filing, be served on all other parties to the appeal.
Rule 26(d) provides:
(d) Proof of Service. Papers presented for filing shall contain an acknowledgment of service by the person served or proof of service in the form of a statement of the date and manner of service and of the names of the persons served, certified by the person who made service. Proof of service shall appear on or be affixed to the papers filed. (Emphasis ours.)
We hold that the clear import of these Rules requires proof of service to show on the notice of appeal when filed. Such provisions carry the clear implication that the drafters of the Rules meant for the notice to be served no later than the filing day. See Smith v. Smith, 43 N.C.App. 338, 258 S.E.2d 833 (1979), disc. rev. denied, 299 N.C. 122, 262 S.E.2d 6 (1980).
Our decision makes it unnecessary to reach plaintiff's second...
To continue reading
Request your trial
-
Henlajon, Inc. v. Branch Highways, Inc., COA01-445.
...automatically mandate dismissal. Defendant contends that Smith v. Smith, 43 N.C.App. 338, 258 S.E.2d 833 (1979) and Shaw v. Hudson, 49 N.C.App. 457, 271 S.E.2d 560 (1980) necessitate dismissal of the appeal because plaintiff failed to comply with the requirements of Rule We do not read eith......
-
Hale v. Afro-American Arts Intern., Inc.
...and unless the requirements of ... Rules of Appellate Procedure are met, the appeal must be dismissed"); Shaw v. Hudson, 49 N.C.App. 457, 459, 271 S.E.2d 560, 561 (1980). The record on appeal contains a notice of appeal, which was filed 9 March 1992. Nothing in the notice, however, shows th......
-
Russell v. University of New Mexico Hospital/Bernalillo County Medical Center, s. 9752
...both filing and service of the notice of appeal must be accomplished in order to confer appellate jurisdiction. Shaw v. Hudson, 49 N.C.App. 457, 271 S.E.2d 560 (1980). Under the federal rules, an appeal is perfected by the sole act of filing a timely notice of appeal. 9 J. Moore, B. Ward & ......
- Leach v. Robertson