Cochrane v. SEA GATE INCORPORATED

256 S.E.2d 504 (1979) 42 N.C. App. 375

Robert S. COCHRANE, Jr. and wife, Polly C. Cochrane
v.
SEA GATE INCORPORATED.

No. 7810SC979.

Court of Appeals of North Carolina.

July 17, 1979.

John R. Hughes & Associates, by David P. Ford, Shallotte, for plaintiffs appellants.

Staton, Betts, Perkinson & West, by William W. Staton, Stanley W. West, and James S. Staton, Sanford, for defendant appellee.

PARKER, Judge.

Appeal from a judgment or order in a civil case, if not taken by giving oral notice as provided in Rule 3(a)(1) of the N.C. Rules of Appellate Procedure and in G.S. 1-279(a)(1), "must be taken within 10 days after its entry." Rule 3(c) of the N.C. Rules of Appellate Procedure; G.S. 1-279(c). [The running of this time may be tolled by a timely motion filed as provided in Rule 3(c), but no such motion was filed in the present case.] G.S. 1A-1, Rule 58 provides, among other matters, that "[u]pon a jury verdict that a party shall recover only a sum certain or costs or that all relief shall be denied or upon a decision by the judge in open court to like effect, the clerk, in the absence of any contrary direction by the judge, shall make a notation in his minutes of such verdict or decision and such notation shall constitute the entry of judgment for the purposes of these rules." (Emphasis added.)

In the present case, entry of judgment was made on 13 March 1978 when the trial judge, in open court and in the presence of counsel for both parties, rendered summary judgment for defendant, and the clerk, in the absence of any contrary direction by the judge, made a notation of such decision in the court minutes. No notice of appeal from the judgment was given until 25 May 1978, more than two months after its entry. Where the appeal is taken more than ten days after the "entry" of judgment and the time within which the appeal can be taken is not otherwise tolled as provided in Rule 3 of the N.C. Rules of Appellate Procedure and in G.S. 1-279, the appellate court obtains no jurisdiction in the matter and the appeal must be dismissed. See Teague v. Teague, 266 N.C. 320, 146 S.E.2d 87 (1966); Giannitrapani v. Duke University, 30 N.C.App. 667, 228 S.E.2d 46 (1976); Brooks v. Matthews, 29 N.C.App. 614, 225 S.E.2d 159 (1976); Clark v. Wallace, 27 N.C.App. 589, 219 S.E.2d 501 (1975).

In fairness to plaintiffs' present counsel, it should be noted that other counsel and not plaintiffs' present counsel represented plaintiff at the time the summary judgment for defendant was entered and when the notice of appeal was given.

Appeal dismissed.

MORRIS, C. J., and HARRY C. MARTIN, J., concur.