Roberts v. Stewart , 3 N.C. App. 120 ( 1968 )

Campbell, J.

The motion to dismiss the appeal must first be determined.

There is a difference between docketing the record on appeal in the Court of Appeals and serving a case on appeal on opposing parties. As pointed out by Brock, J., in Smith v. Starnes, 1 N.C. App. 192, 160 S.E. 2d 547, the two should not be confused. The docketing of the record on appeal in the Court of Appeals is determined by Rule 5 of the Rules of Practice in the Court of Appeals. The record on appeal must be docketed in the Court of Appeals within ninety days after the date of the judgment, order, decree or determination appealed from. Within this period of ninety days, but not after the expiration thereof, the trial tribunal may for good cause extend the time not exceeding sixty days for docketing the record on appeal. This provision, however, does not apply to serving a case on appeal on opposing counsel. That is controlled by the following statute:

“G.S. 1-282. Case on appeal; statement, service, and return. — The appellant shall cause to be prepared a concise statement of the case, embodying the instructions of the judge as signed by him, if there be an exception thereto, and the request of the counsel of the parties for instructions if there be any exception on account of the granting or withholding thereof, and stating separately, in articles numbered, the errors alleged. A copy of this statement shall be served on the respondent within fifteen days from the entry of the appeal taken; within ten days after such service the respondent shall return the copy with his approval or specific amendments indorsed or attached; if the case be approved by the respondent, it shall be filed with the clerk as a part of the record; if not returned with objections within the time prescribed, it shall be deemed approved: Provided, that the judge trying the case shall have the power, in the exercise of his discretion, to enlarge the time in which to serve statement of case on appeal and exceptions thereto or counter statement of case.”

When Judge McLean under date of 16 April 1968 fixed the time at sixty days within which the appeal should be served, his authority was thereafter limited to settling the case on appeal in the event a counter case was served or exceptions were filed. Machine Co. v. Dixon, 260 N.C. 732, 133 S.E. 2d 659.

“As a general rule, an appeal takes a case out of the jurisdiction of the trial court. Thereafter, pending the appeal, the judge is functus officio. ‘. . . (A) motion in the cause can only be entertained by the court where the cause is.’ Exceptions to the general rule are: (1) notwithstanding notice of appeal a cause remains in fieri during the term in which the judgment was rendered, (2) the trial judge, after notice and on proper showing, may adjudge the appeal has been abandoned, (3) the settlement of the case on appeal. Hoke v. Greyhound Corp., 227 N.C. 374, 42 S.E. 2d 407.

The authority of the trial judge to settle the case on appeal may be invoked only by the service of a countercase or by filing exceptions to the appellant’s statement of case. Otherwise the appellant’s statement becomes the case on appeal. G.S. 1-282, 283; Wiggins v. Tripp, 253 N.C. 171, 116 S.E. 2d 355. 'The right of appeal is not an absolute right, but is only given upon compliance with the requirements of the statute. . . . rules requiring service to be made of case on appeal within the allotted time are mandatory, not directive.’ Little v. Sheets, 239 N.C. 430, 80 S.E. 2d 44.” Machine Co. v. Dixon, supra.

In the instant case, the order of Judge McLean dated 13 June 1968 and the order dated 28 June 1968, which enlarged the time to serve statement of case on appeal to and including 25 July 1968, were entered without authority since the appeal had removed the case to the Court of Appeals.

In the absence of a case on appeal served within the time fixed by the statute, or by valid enlargement, the appellate court will review only the record proper and determine whether errors of law are disclosed on the face thereof. We accordingly have reviewed the record proper and no error of law is disclosed on the face thereof.

The judgment of the Superior Court of Buncombe County is

Affirmed.

MallaRD, C.J., and Morris, J., concur.