Warshaw v. Warshaw, 680

• Decision Date: 06 January 1953
• Docket Number: No. 680,680
• Citation: 236 N.C. 754,73 S.E.2d 900
• Parties: WARSHAW, v. WARSHAW.
• Court: North Carolina Supreme Court

Page 900

73 S.E.2d 900

236 N.C. 754

WARSHAW, v. WARSHAW.

No. 680

Supreme Court of North Carolina.

Jan. 6, 1953

Malcolm McQueen, Fayetteville, for plaintiff appellant.

Robert H. Dye, Fayetteville, for defendant appellee.

BARNHILL, Justice.

The record in this cause does not include the summons, the affidavit for publication, the order for service by publication, or the notice of the action as published. Nor does it contain any of the pleadings save and except an answer filed by defendant after the final decree of divorce was entered. There is no stipulation of record in respect to the service of summons. These defects in the record necessitate a dismissal of the appeal. Rule 19, Rules of Practice in the Supreme Court, 221 N.C. 553; Plott Co. v. H. K. Ferguson Construction Co., 198 N.C. 782, 153 S.E. 396; Waters v. Waters, 199 N.C. 667, 155 S.E. 564; Riggan v. Harrison, 203 N.C. 191, 165 S.E. 358; Union Central Life Insurance Co. v. Bullard, 207 N.C. 652, 178 S.E. 113; Goodman v. Goodman, 208 N.C. 416, 181 S.E. 328; Farmers Bank v. McCullers, 211 N.C. 327, 190 S.E. 217; Ericson v. Ericson, 226 N.C. 474, 38 S.E.2d 517.

The rules of this Court governing appeals are mandatory and not directory. Calvert v. Carstarphen, 133 N.C. 25, 45 S. E. 353; Pruitt v. Wood, 199 N.C. 788, 156 S.E. 126, and cases cited. To assure uniformity of treatment they must be universally enforced. Stone v. Ledbetter, 191 N.C. 777, 133 S.E. 162; Jones v. Jones, 232 N.C. 518, 61 S.E.2d 335.

We may note that this disposition of the appeal deprives the plaintiff of no substantial right. The original cause was tried before the time for answer had expired. It was not then at issue. Whether the decree entered on the verdict is void we are not presently required to decide. Suffice it to say there was at least material irregularity in the proceeding.

Furthermore, the only exception is to the signing of the judgment and to 'findings of fact.' This is a broadside exception which merely challenges the sufficiency of the facts found to support the judgment entered. Vestal v. Moseley Vending Machine Exchange, 219 N.C. 468, 14 S.E.2d 427.

Incidentally, the record presents a somewhat novel situation. The plaintiff insists that the original decree is valid and should be sustained. At the same time he asserts that the court below erred in failing to rule on his demurrer for that the court is without jurisdiction of the parties or the cause of action.

The defendant has now made a general...