Little v. Sheets

80 S.E.2d 44 (1954) 239 N.C. 430

LITTLE et al.
v.
SHEETS et al.

No. 751.

Supreme Court of North Carolina.

January 29, 1954.

Bowie & Bowie, T. C. Bowie, Jr., Wade E. Vannoy, Jr., West Jefferson, for plaintiff-appellants.

Johnston & Johnston, Jefferson, for defendant-appellees.

WINBORNE, Justice.

Appellees, having reserved their objection that the statement of case on appeal was not presented in time, move in this Court for affirmance of the judgment below, or for dismissal of the appeal. This basis on which the motion rests is that the statute G.S. § 1-282 requires that appellant shall cause to be prepared a statement of the case on appeal, and a copy thereof served on the respondent within fifteen days from the entry of the appeal taken; and that while this statute vests the judge trying the case with power, in his discretion, to enlarge the time in which to serve case on appeal, no such power is given to clerks of Superior Court. This Court is of opinion, and now holds, that the point is well taken.

On the other hand, appellants say and contend that the preceding section of the General Statutes, that is, G.S. § 1-281, is applicable, in that it provides that "When appeals are taken from judgments of the clerk or judge not made in term time, the clerk is authorized to make any and all necessary orders for the perfecting of such appeals", and, hence in such case, the clerk is vested with an over-all authority, including power to enlarge time for service of case on appeal.

This position is untenable for these reasons: This proceeding was tried in term time before the presiding judge, without a jury, and judgment was rendered as of the term. The parties only agreed that the judge might render judgment out of term, and out of the district. Moreover, the General Assembly having expressly fixed the time for serving of statement of case on appeal, and having specifically authorized the judge, in his discretion, to enlarge the time, it would seem, therefore, that this procedure is exclusive. The express mention of the one excludes the other. Indeed, it will not be assumed that the General Assembly intended to give to clerk of Superior Court implied authority to do that for which express authority is given to the judge:

"The right to appeal is not an absolute right, but is only given upon compliance with the requirements of the statute". Kerr v. Drake, 182 N.C. 764, 108 S.E. 393, 394. See also State v. Daniels, 231 N.C. 17, at page 24, 56 S.E.2d 2, 7, where it is stated that "rules requiring service to be made of case on appeal within the allotted time are mandatory, not directive."

Therefore this Court is constrained to hold that the case on appeal, shown in the transcript on this appeal not having been served within the time fixed by statute, and there being neither waiver nor valid enlargement of time for service thereof, is a nullity. Hicks v. Westbrook, 121 N.C. 131, 28 S.E. 188; Hall v. Hall, 235 N.C. 711, 71 S.E.2d 471, and cases cited.

However, the motion to dismiss the appeal on the ground that there is no case on appeal must be denied, for the reason that there may be error on the face of the record proper. But a motion to affirm the judgment below is appropriate procedure.

Where there is failure to have a case on appeal legally served and settled, decisions of this Court uniformly hold that that does not of itself require a dismissal of the appeal. The appellants are still entitled to present the case on the record proper. We cite a few of such decisions. See Wallace v. Salisbury, 147 N.C. 58, 60 S.E. 713; Roberts v. Greensboro-Fayetteville Bus Co., 198 N.C. 779, 153 S.E. 398; Pruitt v. Wood, 199 N.C. 788, 156 S.E. 126; Bell v. Nivens, 225 N.C. 35, 33 S.E.2d 66; Lawrence v. Lawrence, 226 N.C. 221, 37 S.E.2d 496; Hall v. Robinson, 228 N.C. 44, 44 S.E.2d 345; State v. Bryant, 237 N.C. 437, 75 S.E.2d 107.

In the light of this rule of practice, an examination of the record proper on this appeal fails to disclose error therein. And it is not inappropriate to say, in passing, that an examination of the case on appeal shown in the record, but not served in time, discloses substantial competent evidence to support the finding of fact made by the judge as to the true dividing line between the lands of plaintiffs, and those of defendants, in keeping with well settled and applicable principles of law. See Wilson Lumber & Milling Co. v. Hutton & Bourbonnais Co., 159 N.C. 445, 74 S.E. 1056; Whitaker v. Cover, 140 N.C. 280, 52 S.E. 581; Huffman v. Pearson, 222 N.C. 193, 22 S.E.2d 440; Brown v. Hodges, 232 N.C. 537, 61 S.E.2d 603, and cases there cited.

And, a jury trial having been waived, and the parties agreeing that the judge should pass upon the issues, the findings of the judge, supported by evidence, are as conclusive as the verdict of a jury. See of late cases: Poole v. Gentry, 229 N.C. 266, 49 S.E.2d 464; Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351; St. George v. Hanson, N.C., 78 S.E.2d 885; Lovett v. Stone, N.C., 79 S.E.2d 479; State Trust Co. v. M. & J. Finance Corp., 238 N.C. 478, 78 S.E.2d 327.

For reasons stated:

Motion to dismiss denied.

Motion to affirm allowed.