Wiggins v. PYRAMID LIFE INSURANCE COMPANY , 3 N.C. App. 476 ( 1969 )

165 S.E.2d 54 (1969) 3 N.C. App. 476

Lloyd M. WIGGINS
v.
PYRAMID LIFE INSURANCE COMPANY.

No. 681SC431.

Court of Appeals of North Carolina.

January 15, 1969.

John H. Hall, Elizabeth City, for plaintiff appellant.

Cansler & Lockhart, Charlotte, for defendant appellee.

BROCK, Judge.

It seems to us that counsel interpreted the last paragraph of the judgment of the District Court as setting the date of the judgment, nunc pro tunc, on 19 June 1967. The said last paragraph reads as follows: "This judgment signed out of term and out of the county and within the district, by consent, this 31st day of October, 1967, all as of the date of the trial of said action, to wit: June 19, 1967." This judgment was filed 3 November 1967, and the notice of appeal was filed 3 November 1967.

It may be that, for some purpose, the judgment is effective as of the date of 19 June 1967; but it is quite clear that notice of appeal could not be given until the judgment was signed on 31 October 1967. Therefore the date of notice of appeal comes on or after 1 October 1967.

G.S. § 7A-35(a) provides:

"Civil cases tried in the district court in which notice of appeal to the superior court has been given on or before September 30, 1967, and which have not been finally determined in the superior court on that date, shall be disposed of as provided by rule of the Supreme Court, and the jurisdiction of the superior court over civil appeals from the district court continues to the extent necessary for this purpose."

G.S. § 7A-35(c) provides:

"On and after October 1, 1967, all causes appealed to the appellate division from the Utilities Commission, the Industrial Commission, the district court in civil cases, or the superior court, other than criminal cases which impose a sentence of death or life imprisonment, shall be filed with the clerk of the Court of Appeals."

These statutes make the date of notice of appeal controlling, not the date of the trial or the judgment. Under the statute the Superior Court has no jurisdiction to hear and determine an appeal from the District Court where the notice of appeal has been given on or after 1 October 1967; and it follows that the Superior Court of Gates County had no jurisdiction to hear and determine the appeal in this case. Unfortunately, the stipulation as to the understanding of counsel notwithstanding, defendant has chosen an improper forum in which to docket its appeal from the District Court.

Jurisdiction cannot be conferred by consent where it does not otherwise exist, 1 McIntosh, N.C. Practice 2d, § 6, and the jurisdiction of the Court of Appeals is derivative; therefore, if the court from which the appeal is taken had no jurisdiction, the Court of Appeals cannot acquire jurisdiction by appeal. 1 Strong, N.C. Index 2d, Appeal and Error, § 1, p. 103.

Neither party has raised the question of jurisdiction before this Court; nevertheless we will take notice ex mero motu of defects in the record. 1 Strong, N.C. Index 2d, Appeal and Error, § 5, p. 110.

Ex mero motu this appeal is dismissed for lack of jurisdiction.

Appeal dismissed.

BRITT and PARKER, JJ., concur.