MATTER OF McCARROLL , 327 S.E.2d 880 ( 1985 )

327 S.E.2d 880 (1985)

In the Matter of Brent Melton McCARROLL, Applicant to the February 1984 North Carolina Bar Examination.

No. 664A84.

Supreme Court of North Carolina.

April 2, 1985.

Brent Melton McCarroll, pro se.

Erdman, Boggs & Harkins by Harry H. Harkins, Jr., for appellee.

PER CURIAM.

No final judgment has been entered by the trial court with regard to the applicant's appeal of the Board's order denying his bar application. "As a general rule, interlocutory decrees are immediately appealable only when they affect a substantial right of the appellant and will work an injury to him if not corrected before an appeal from a final judgment." Love v. Moore, 305 N.C. 575, 578, 291 S.E.2d 141, 144 (1982); Equitable Leasing Corp. v. Myers, 46 N.C.App. 162, 265 S.E.2d 240 (1980). Denial of applicant's motion for production of documents affects no substantial right and is not appealable. Lundy Packing Co. v. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, 31 N.C.App. 595, 230 S.E.2d 181 (1976). Nor is his motion for a free transcript appealable. However, the trial court's denial of applicant's motion to sue as a pauper affects a substantial right and is appealable. Similarly, the order denying his motion for a jury trial is appealable. Matter of Ferguson, 50 N.C.App. 681, 274 S.E.2d 879 (1981).

Upon filing his notice of appeal with the Wake County Superior Court, applicant filed an application to sue as a pauper under G.S. 1-110. The Clerk of Superior Court granted him an ex parte order allowing him to pursue this action as a pauper. The Board of Law Examiners appealed the clerk's ruling to the Superior Court. Applicant subsequently filed a written motion that he be declared a pauper. The Board's appeal and applicant's motion were heard by Judge Barnette, who denied the motion to sue as a pauper.

Board Rule .1403 requires that the record on appeal be prepared and filed "at the expense of the appellant." The chief expense is the cost of the transcript of the Board's hearing, required by Rule .1403(2). The Clerk of Court also requires the usual fee for filing civil actions. The Rules contain no provision for waiver of these charges. G.S. 1-110 states that a judge or clerk "may authorize a person to sue as a pauper in their respective courts...." "The right to sue as a pauper is a favor granted by the court and remains throughout the trial in the power and discretion of the court." Whedbee v. Ruffin, 191 N.C. 257, 259, 131 S.E. 653, 655 (1926); Alston v. Holt, 172 N.C. 417, 90 S.E. 434 (1916).

The trial judge made detailed findings of fact to support its order. Although applicant excepted to most of these findings of fact, he has offered no argument in his brief that any are unsupported by the evidence. Indeed, he did not include any of the testimony taken by the court in the record on appeal. The findings are therefore conclusive on appeal. "It is well settled that when the evidence is not included in the record, it will be presumed that the evidence was sufficient to support the findings of fact." Southern Bell Tel. & Tel. Co. v. Petty Communications, Inc., 27 N.C.App. 673, 674, 219 S.E.2d 800, 801 (1975). See In re Housing Authority, 233 N.C. 649, 65 S.E.2d 761 (1951); Bethea v. Bethea, 43 N.C.App. 372, 258 S.E.2d 796 (1979), cert. denied, 299 N.C. 119, 261 S.E.2d 922 (1980). Clearly, no abuse of discretion has been shown here.

The trial court denied the applicant's motion that his appeal from the Board's order be heard by a jury and that Board Rule .1404 be declared unconstitutional. This rule requires the judge to hear bar application appeals without a jury. G.S. 150A-50, the Administrative Procedure Act, contains a similar provision. Applicant contends that Article I, § 25 of the North Carolina Constitution mandates that he be allowed a jury trial.

In North Carolina State Bar v. Dumont, 304 N.C. 627, 286 S.E.2d 89 (1982), this Court rejected the contention of an attorney that he had a constitutional right to a trial by jury in a disciplinary proceeding. At one time, trial by jury did exist in attorney disciplinary proceedings. There has never been a right to trial by jury in bar admission cases, either for the original application or on appeal. The argument is wholly without merit and is rejected.

For the foregoing reasons, the orders denying applicant's motions for a jury trial and to sue in forma pauperis are affirmed and the case is remanded to the Superior Court of Wake County for further proceedings not inconsistent with this opinion.

NO ERROR.