Smith v. Smith
| Decision Date | 16 October 1979 |
| Docket Number | No. 7918DC101,7918DC101 |
| Citation | 258 S.E.2d 833,43 N.C.App. 338 |
| Court | North Carolina Court of Appeals |
| Parties | Sybil McGinnis SMITH v. Harold Wayne SMITH. |
Adams, Kleemeier, Hagan, Hannah & Fouts by Joseph W. Moss, Greensboro, for plaintiff-appellee.
Henderson & Jennings by Neill A. Jennings, Jr., Greensboro, for defendant-appellant.
Defendant assigns error to the conclusion of the trial court that he failed to comply with the provisions of Rule 3 and Rule 26 of the Rules of Appellate Procedure. Under App.R. 3 and G.S. 1-279, appeal from a judgment or order in a civil action must be taken within ten days from its entry. The requirement of timely filing and service of notice of appeal is jurisdictional, and unless the requirements of both G.S. 1-279 and the Rules of Appellate Procedure are met, the appeal must be dismissed. Giannitrapani v. Duke University, 30 N.C.App. 667, 228 S.E.2d 46 (1976). Rule 3(a) of the Rules of Appellate Procedure provides in pertinent part:
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 (ten days after the entry of the judgment or order).
App.R. 26 prescribes the proper procedure for service of the notice of appeal:
(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. (emphasis added).
(c) Manner of Service . . . Service may also be made upon a party or his attorney of record by delivering a copy to either or by mailing it to either at his last known address . . . . Service by mail is complete upon deposit of the paper enclosed in a postpaid, properly addressed wrapper in a Post Office or official depository under the exclusive care and custody of the United States Post Office Department.
In its findings of fact, the trial Court found that notice of appeal was filed in the Office of the Clerk of Superior Court of Guilford County on 21 August 1978 at 3:58 p. m. and that defendant's attorney placed a properly addressed envelope containing the Notice of Appeal and Certificate of Service in an official depository under the exclusive care and custody of the U.S. Post Office department at some time after 6:00 p. m. on 21 August 1978. Based on this finding of fact, the trial court concluded that defendant had failed to comply with the provisions of App.R. 3 and App.R. 26 because service of notice of appeal on plaintiff's counsel was not made "at or before the time of filing" of the Notice of Appeal within the meaning of those words as they appear in App.R. 26(b). We hold that this conclusion was erroneous. Service upon plaintiff's counsel on 21 August was complete upon deposit in the mail. Although App.R. 26(b) requires that copies of papers be served upon the opposing party At or before the time of filing, the phrase "at or before" must be given a logical construction. If the word "at" is strictly...
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...or before the date of filing pursuant to Rule 26(b) does not 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 faile......
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