Summey ex rel. Summey v. McDowell , 4 N.C. App. 62 ( 1969 )

Mallard, C.J.

This record on appeal was docketed here on 20 September 1968 and is from the same trial as the appeal of the original defendants. The record in the original defendants’ appeal reveals that the case was heard “at the May 10, 1968 Session of Randolph Superior Court,” and the record here reveals that the case was heard “at the April 29, 1968 Session of Randolph Superior Court.” However, it is clear upon reading the two records that the appeal is from the same trial and judgment that the original defendants appealed from and that the actual trial occurred on 10 May 1968 at the 29 April 1968 Session of Superior Court of Randolph County, and the judgment was signed 25 May 1968.

There is no mention made in the record on appeal of the original defendants that the additional defendants had also appealed. The appeal of the original defendants was argued in this Court on 28 August 1968 and opinion was filed on 18 September 1968.

The appeal entries of the additional defendants contained in this record on appeal reveal that although they are dated 25 May 1968, in chambers, they were not actually filed until 13 August 1968. There is nothing in the record indicating where these appeal entries were located during that time. The record brought up on the appeal of the original defendants does not show that an appeal was taken by the additional defendants at the trial. The record on appeal now brought up by the additional defendants shows “these appeal entries entered as of the 25th day of May, 1968, in Chambers.” However, the plaintiff appellees do not move to dismiss for a failure to comply with the provisions of G.S. 1-279 and G.S. 1-280, which, among other things, require an appellant who gives notice of appeal from a judgment rendered out of term to cause his appeal to be entered bjr the clerk on the judgment docket within ten days after notice thereof. Both records are silent as to whether this appeal entry was entered by the clerk on the judgment docket before it was filed, as required by the statute. Mason v. Commissioners of Moore, 229 N.C. 626, 51 S.E. 2d 6. Counsel for appellees admits on oral argument that the case on appeal was timely served, and the record reveals that the record on appeal was docketed within the time provided by the Rules of this Court. The question of whether appellants failed to comply with the provisions of G.S. 1-279 and G.S. 1-280 is not presented or decided.

A motion was filed by appellees to dismiss the appeal of the additional defendants for that, among other things, the appellants failed to comply with the provisions of Rule 19(b) of the Rules of Practice in the Court of Appeals of North Carolina. This rule reads as follows:

“(b) Two Appeals. When there are two or more appeals in one action, only one copy of the record and the proceedings of the trial in the trial tribunal shall be necessary. In the event counsel cannot agree, the trial tribunal shall determine which of the methods described in Rule 19(d) shall be followed, who is to prepare it, and the part of the costs to be advanced by each appealing party.”

The appeal of the original defendants was docketed in this Court on 5 July 1968, which was before these additional defendants were required by order of the trial judge to serve their case on appeal. There is nothing in the record in either case which would make the provisions of Rule 19(b) applicable. Additional defendants, if they comply with the applicable rules in giving notice of, serving, and docketing their appeal, are entitled to be heard on proper assignments of error. The fact that other defendants may have docketed a record on appeal in the same case does not deprive additional defendants of the right to be heard.

Appellees also move that appellants’ case on appeal be dismissed for that, appellees contend the decision of this Court on the appeal of the original defendants is res judicata as to these additional defendants. This contention is without merit because to so hold would deprive the additional defendants of the right to have their proper assignments of error considered.

On this appeal the additional defendants, appellants, assign as error and bring forward in their brief a contention that the trial court committed error in refusing to admit into evidence the following Randolph County records:

“State vs. Lespie Summey— Recorder’s Court File No.23318B Vonzelle Wood Summey vs. John Lespie Summey — Judgment Roll No. A33202.

Vonzelle Wood Summey vs. John Lespie Summey — Judgment Roll No. A33203”.

All of these records relate to the individual, John Lespie Sum-mey, who as an individual is not a party to this action. The connection he has with this case is as next friend of the plaintiff Dennis Ray Summey.

The first record excluded by the trial court is in the case of State v. Lespie Summey. In this record the verdict and sentence is revealed, and also it is shown that Vonzelle Summey is the affiant in a warrant issued under date of 20 April 1963, charging Lespie Summey with abandonment and nonsupport of his wife, Vonzelle Summey, and two minor children, Ronda Faye Summey and Dennis Ray Summey. In this connection it is noted that the will of R. J. Wood under which the parties claim title to the timber and land involved in this case is dated 27 February 1946. Appellants assert in their brief that R. J. Wood died prior to 7 October 1946. This action was instituted on 4 May 1967. We are of the opinion and so hold that it was not prejudicial error to exclude this criminal record.

The second record excluded by the trial court is judgment roll #A33202 in the case of Vonzelle Wood Summey v. John Lespie Summey. This action was instituted on 22 July 1964 for custody of the child, Dennis Ray Summey, support, and alimony without divorce against John Lespie Summey by his wife, Vonzelle Wood Summey. In this record there is included, among other things, summons, complaint, answer, many affidavits, a final account by Lewis E. Wood, Executor of the Estate of Celia Ann Snider Wood which was filed 9 January 1964, many orders, many motions, contempt citations against John Lespie Summey, and a consent judgment dated 29 September 1965. We are of the opinion and so hold that it was not prejudicial error to exclude this judgment roll containing a record of marital difficulties between Vonzelle Wood Summey and John Lespie Sum-mey.

The third and last record excluded by the trial court is judgment-roll #A33203 in the case of Vonzelle Wood Summey v. John Lespie Summey. This action was instituted 4 June 1965 for an absolute divorce, in which it is alleged by Vonzelle Wood Summey that she and John Lespie Summey were married 17 April 1940 and lived together as husband and wife until their separation on or about 9 March 1964. In this case, after service by publication was had, John Lespie Summey filed an answer admitting the allegations of the complaint. Judgment of divorce was entered, after trial by jury, on 29 September 1965. We are of the opinion and so hold that it was not prejudicial error to exclude this judgment roll.-

On this appeal the additional defendants contend that the trial court committed error in making permanent the restraining order against the original defendants, in signing the judgment, and in holding therein as a matter of .law that the Rule in Shelley’s Case does not apply in construing that portion of the will of R. J. Wood relating to the land and timber involved here. The pertinent parts of the will are quoted in the decision of this Court in the appeal of the original defendants.

In the appeal of the original defendants in Summey v. McDowell, 2 N.C. App. 360, 163 S.E. 2d 115, the same question of the applicability of the Rule in Shelley’s Case to the same portion of the will of R. J. Wood was presented, argued, and decided. The decision there controls here.

In the assignments of error of the additional defendants, we find no prejudicial error. The judgment of the Superior Court entered herein is

Affirmed.

BRItt and PARKER, JJ., concur.