Wiggins v. Tripp

116 S.E.2d 355 (1960)

253 N.C. 171

W. T. WIGGINS v. George TRIPP, Major Tripp and Craven Lumber Company, a corporation.

No. 90.

Supreme Court of North Carolina.

October 12, 1960.

*358 R. E. Whitehurst, New Bern, LeRoy C. Scott, Washington, David S. Henderson, New Bern, for plaintiff appellee.

Cecil May, H. P. Whitehurst, New Bern, Wilkinson & Ward, Washington, for defendant appellant.

WINBORNE, Chief Justice.

At the threshold of their appeal defendants are confronted with a motion to dismiss the appeal for that there is no case on appealand the record contains no request for the judge to settle a case on appeal.

The requirements are set forth in G.S. § 1-282 and G.S. § 1-283. The statute provides that the appellant shall cause to be prepared a concise statement of case on appeal and prescribes what it shall embody, and that a copy shall be served on respondent, appellee, within time given by statute or extended by order of court. It further provides that within time given in like manner respondent shall return the copy with his approval or with specific amendments endorsed or attached. If the case on appeal be returned by the respondent, with exceptions as prescribed, the appellant shall immediately request the judge to fix a time and place for settling the case before him. If, however, the appellant delays longer than fifteen days, unless time be enlarged by agreement after respondent serves his counter-case or exceptions, to make such request, or delays for such period to mail the case and countercase or exceptions to the judge, the exceptions filed by the respondent shall be allowed, or the countercase served by him shall constitute the case on appeal.

However it is the duty of the appellant to have the statement of case on appeal as thus modified, redrafted and submitted to the judge for his signature. Gaither v. Carpenter, 143 N.C. 240, 55 S.E. 625. Western North Carolina Conference v. Talley, 229 N.C. 1, at page 6, 47 S.E.2d 467, at page 470: "Moreover, when he fails to do this, there is no `Case on Appeal'. Mitchell v. Tedder, 107 N.C. 358, 12 S.E. 193; Waller v. Dudley [193 N.C. 749, 138 S.E. 128]."

Let it be noted that while this Court in response to motion suggesting diminution of the record, entered an order (1) granting time in which to serve statement of case on appeal and time in which to serve exceptions or countercase, and (2) providing that if case on appeal should not be settled by agreement, same should be settled by Judge *359 Bundy within given time, the order does not relieve appellant of duty of requesting the Judge to settle the case, and of otherwise performing the duties imposed upon appellant by the statute. G.S. § 1-282 and G.S. § 1-283.

And where there is no proper statement of case on appeal, the Supreme Court can determine only whether there is error on the face of the record proper. Western North Carolina Conference v. Tally, supra.

Applying these provisions of the statutes interpreted by decisions of this Court, error is not made to appear upon the face of the record. Therefore the motion to dismiss is well taken, and should be granted.

Appeal dismissed.