Crosby v. Crosby

161 S.E.2d 654 (1968) 1 N.C. App. 398

Andrew CROSBY
v.
Fannie W. CROSBY.

No. 68SC151.

Court of Appeals of North Carolina.

June 12, 1968. Certiorari Denied August 23, 1968.

Hayes & Hayes, by W. Warren Sparrow, Winston-Salem, for plaintiff appellee.

Randolph & Drum, by Clyde C. Randolph, Jr., Winston-Salem, for defendant appellant.

BRITT, Judge.

In her appeal to this Court, defendant failed to comply with Rule 19(d) (2). Rule 19 relates to the record on appeal. Subsection (d) is entitled "Evidence—How Stated" and provides that the evidence in the record on appeal shall be in one of the two following methods:

(1) [In narrative form as required for many years by Rule 19(4) of the Supreme Court of North Carolina.]

(2) As an alternative to the above method (as a part of the record on appeal but not to be reproduced), the appellant shall cause the complete stenographic transcript of the evidence in the trial tribunal, as agreed to by the opposite party or as settled by the trial tribunal as the case may be, to be filed with the clerk of this Court and then the appellant in an appendix to his brief shall set forth in succinct language with respect to those witnesses whose testimony is deemed to be pertinent to the questions raised on appeal, what he says the testimony of such witness tends to establish with citation to the page of the stenographic transcript in support thereof. The opposite party in case of disagreement as to any portion of the appendix in appellant's brief may set forth in an appendix to his brief in succinct language what he says the testimony of a witness establishes with citation to the page of the stenographic transcript in support thereof. (Emphasis added.)

In her appeal, defendant caused to be filed a stenographic transcript of the evidence presented before Judge Johnston but failed to provide an appendix to her brief setting forth "in succinct language with respect to those witnesses whose testimony is deemed to be pertinent to the questions raised on appeal, what he says the testimony of such witness tends to establish with citation to the page of the stenographic transcript in support thereof."

For failure to comply with the rule aforesaid, this Court ex mero motu dismisses defendant's appeal.

Nevertheless, we have carefully reviewed the record on appeal and the briefs submitted by plaintiff and defendant and find no prejudicial error. There was sufficient competent evidence to support the findings and conclusions of Judge Johnston that plaintiff has not willfully disobeyed the orders of the court and is not in contempt of the orders of the court.

Appeal dismissed.

CAMPBELL and MORRIS, JJ., concur.