Finley v. Finley ( 1972 )

MALLARD, Chief Judge.

Appellant says that “(t)he only question involved in this appeal is whether the trial judge is correct in denying defendant’s motion, by special appearance, that the Judgment dated April 9, 1970 be arrested and declared null and void.”

Rule 19(a) of the Rules of Practice in the Court of Appeals of North Carolina [see Volume 4A, Appendix 1(4), p. 258, of the General Statutes of North Carolina and pp. 31-32 of the 1971 Supplement thereto] requires that the proceedings shall be set forth in the order of the time in which they occurred, and that every pleading, motion, affidavit or other document included in the record on appeal shall plainly show the date on which it was filed and, if verified, the date of the verification and the name of the person who verified it. This rule also requires that every order, judgment, decree and determination show the date on which it was signed and the date on which it was filed.

In the record before us the foregoing provisions of the rules were ignored in many respects, among which are: The filing dates are absent or illegible on the original record filed in the Court of Appeals and are therefore not shown on the repro-. duced record of the complaint, the order of publication, the notice of service of process by publication appearing on page 9, the “Supplementary Affidavit for Service by Publication” and the “Affidavit of Publication” on page 10, and the judgment dated 9 April 1970. (Although there is a date appearing after the word “Judgment,” the record does not indicate to what this date pertains; however, from an examination of the original record on file in this office, it appears that this may be the date the judgment was signed and may be the date it was filed, but the record does not show this.) Neither the filing date nor the date of the defendant’s “Special Appearance Making Motion to Arrest Judgment” appears, and the filing date on the original filing of this motion is illegible. The judgment dated 4 November 1971 denying defendant’s motion to arrest the judgment herein contains a date after the word judgment, but there is nothing to indicate to what this date pertains. Moreover, the “Supplementary Affidavit for Service by Publication” (on page 10), which appears to have been sworn to by plaintiff’s attorney on 5 January 1971, was placed in the original index and record, as well as in the reproduced record, before an affidavit of one Thomas Boney, Publisher, as to the publication of the notice of service of process by publication. This affidavit shows that it was sworn to on 19 March 1970.

Appellant says in his brief that both the “Supplementary Affidavit” and the affidavit of publication were “filed in this case approximately nine months after the Judge signed the judgment of April 9, 1970.” In an addendum to the record, however, there appears to be another “Affidavit of Publication” filed 9 April 1970. The filing date on the original of this “Supplementary Affidavit” filed in this court is almost illegible and there is no filing date on the publisher’s affidavit of publication. With some imagination and interpolation, however, this “Supplementary Affidavit” could be interpreted as bearing a filing date of 5 January 1971, which would have been after the signing date appearing on the judgment dated 9 April 1970. This affidavit appears in the original index and in the original record filed in this court by the appellant before the judgment dated 9 April 1970, which judgment (if we again use some imagination and interpolation) could have been, and probably was, filed on 13 April 1970. If our assumption as to the date of the filing of the judgment is correct, we then could logically proceed further and speculate that the “Supplementary Affidavit for Service by Publication” and the affidavit as to publication were both filed before the judgment, because the rules of this court require that in the record on appeal documents appear in the order of filing and the documents referred to appear before the judgment. In this case, we will not indulge in such speculation. The record before us is incomplete, disorganized, and in an obviously disordered condition and some of these filing dates are material to the question appellant seeks to present.

It was the duty of the appellant to cause the record on appeal to be properly made up and transmitted to the Court of Appeals. State v. Cutshall, 278 N.C. 384, 180 S.E. 2d 745 (1971); State v. Harris, 10 N.C. App. 553, 180 S.E. 2d 29 (1971); State v. Thigpen, 10 N.C. App. 88, 178 S.E. 2d 6 (1970); State v. Byrd, 4 N.C. App. 672, 167 S.E. 2d 522 (1969). The appellant has thus failed to comply with the rules of this court, and for failure to comply with the rules, the appeal is subject to be dismissed. See Rule 48 of the Rules of Practice in the Court of Appeals.

Under Rule 6 of the General Rules of Practice for the Superior and District Courts Supplemental to the Rules of Civil Procedure adopted Pursuant to G.S. 7A-34, effective July 1, 1970 [see Volume 4A, Appendix 1(5), p. 271, of the General Statutes of North Carolina], it is provided that all motions, written or oral, shall state the rule number or numbers under which the movant is proceeding. It is noted that the defendant, in addition to failing to date his “Special Appearance Making Motion to Arrest Judgment,” also failed to comply with this rule requiring him to state the rule number or numbers under which he was proceeding and therefore this motion was insufficient. See Clouse v. Motors, Inc., 14 N.C. App. 117, 187 S.E. 2d 398 (1972); Lehrer v. Manufacturing Co., 13 N.C. App. 412, 185 S.E. 2d 727 (1972); Plumbing Co. v. Supply Co., 11 N.C. App. 662, 182 S.E. 2d 219 (1971); Terrell v. Chevrolet Co., 11 N.C. App. 310, 181 S.E. 2d 124 (1971); and Lee v. Rowland, 11 N.C. App. 27, 180 S.E. 2d 445 (1971).

We hold that the “Special Appearance Making Motion to Arrest Judgment” was incorrectly made, and that on this record the appellant does not present the question sought to be presented. The trial judge could have properly denied defendant’s motion by “Special Appearance” that the judgment dated 9 April 1970 be arrested and declared null and void for failure to comply with Rule 6.

For the reasons hereinabove stated, the appeal is dismissed.

Appeal dismissed.

Judges Moréis and Parker concur.