Walker v. Scott

• Decision Date: 24 April 1889
• Citation: 102 N.C. 487,9 S.E. 488
• Court: North Carolina Supreme Court
• Parties: Walker et al. v. Scott et al.

9 S.E. 488

(102 N.C. 487)

Walker et al.

v.Scott et al.

Supreme Court of North Carolina.

Apr. 24, 1889

Appeal—Procedure—Rules op Court.

1. An appeal will not be dismissed for the failure of the appellant to serve a case stated on appeal upon the appellee. If there are no assignments of error, or if no errors appear in the record proper, a motion to affirm is the proper procedure.

2. The case stated or settled on appeal passes into and becomes part of the case in the court below, and it comes up as a part of the record. The supreme court has no authority to make, alter, or modify it, or to determine whether it was duly filed. All motions and orders in respect to it must be made in the court below.

3. Under a rule of court requiring the record to be printed, it is sufficient if it be printed, by the time the case is called for argument.

4. Supreme court N. C, rule 2, § 8, providing that "if an appellant shall fail to file the transcript of the record of his appeal within the time he might do so, so that the appeal shall stand for argument at the term to which it is taken, the appellee may move * * * to dismiss the same, * * * and his motion shall be allowed, unless reasonable excuse for such failure shall be shown within such time as the court may direct, in which case the court may deny the motion and allow a continuance, " is designed to prevent appellants from delaying the decision of their appeals, and will be enforced as its importance demands.

Appeal from superior court, Cherokee county.

Motion to dismiss appeal.

J. W. & R. L. Cooper, for appellants. Jones & Shuford, for appellees.

Merrimon, J. At the present term the appellees moved to dismiss this appeal upon the grounds, first, that the appellants failed to serve any case stated on appeal upon them or their counsel. The motion cannot bo allowed for this cause. What purports to be such statement appears in the transcript of the record, but, if this were not so, the absence of it would not be ground for sustaining the motion, because it is not essential to the appeal. It may be that there are assignments of error in the record, and errors may appear in the record proper, so that a statement of the case on appeal may not be necessary. The proper motion, in the absence of errors appearing in the record or properly assigned, is to affirm the judgment. Manufacturing Co. v. Simmons, 97 N. C. 89, 1 S. E. Rep. 923. The appellees, in support of this ground of their motion, offered affidavits to prove that what purports in the transcript of the record to be the case stated on appeal, duly served on their counsel, was never in fact served on themselves or their counsel, and they asked this court to hear the evidence, find the facts, and make appropriate orders striking the statement from the record. This application is a misapprehension of the proper course of procedure in such case. The motion should be made in the court below to strike from the files there such statements as having been improperly filed with the clerk, as allowed in proper cases by the statute, (Code, § 551,) and direct the clerk to take no further notice of it. The case stated or settled on appeal pas-es into and becomes part of the case in the court below, and it comes to this court as part of the record. This court has no authority to make, alter, or modify it in any material aspect, or to determine that it was or was not duly tiled. It is therefore appropriate and proper, indeed, necessary, that the court below should hear all motions, and make all proper orders in respect to it. A motion here, if need be, to stay the hearing of the appeal until such motion could be made, heard, and determined in that court, might be appropriate.

The second ground of the motion, and the counter-motion of the appellants for the writ of certiorari, will not be disposed of for the present, for...