Clark v. . Clark

Winborne, J. Tbe motion to dismiss tbe appeal must be allowed. Tbe requirements of tbe statute relating to appeals to Supreme Court from judgment of Superior Court, in a civil action, G. S., 1-288, formerly C. S., 649, without making tbe deposit or giving tbe security required by law for such appeal are mandatory and jurisdictional, and “unless tbe statute is complied with, tbe appeal is not in this Court, and we can take no cognizance of tbe case, except to dismiss it from our docket.” Honeycutt v. Watkins, 151 N. C., 652, 65 S. E., 762. See, also, among others, these cases: Riggan v. Harrison, 203 N. C., 191, 165 S. E., 358; Hanna v. Timberlake, ibid., 556, 166 S. E., 733; McIntire v. McIntire, ibid., 631, 166 S. E., 731; Powell v. Moore, 204 N. C., 654, 169 S. E., 281; Noble v. Pritchett, ibid., 804, 169 S. E., 618; Brown v. Kress & Co., 207 N. C., 722, 178 S. E., 248; Lupton v. Hawkins, 210 N. C., 658, 188 S. E., 110; Berwer v. Ins. Co., 210 N. C., 814, 188 S. E., 618; Gilmore v. Ins. Co., 214 N. C., 674, 200 S. E., 407; Franklin v. Gentry, 222 N. C., 41, 21 S. E. (2d), 828. In Powell v. Moore, supra (1933), where there is full discussion of tbe provisions of tbe statute as it then appeared in section 649 of Consoli *689 dated Statutes of 1919, it is said: “It is not tbe policy of our law to deny to any litigant bis right of appeal, but inasmuch as only questions of law are to be determined in tbe Supreme Court, wben tbe party cast in a civil action is unable to make tbe deposit or give 'the security required by law for bis appeal, be is reasonably required (1) to make affidavit, witbin five days, tbat be is unable by reason of bis poverty to give tbe security required by law, and (2) tbat be is advised by counsel learned in tbe law there is error in matter of law in tbe decision of tbe Superior Court — which affidavit (3) must be accompanied by a written statement from a practicing attorney of said Superior Court tbat be has examined tbe affiant’s case, and is of opinion tbat tbe decision of. tbe Superior Court in said action is contrary to law, and (4) tbe appeal, when passed upon and granted by tbe clerk, shall be witbin ten days from tbe expiration by law of said term of court.” Thereafter, tbe General Assembly of 1937 (Public Laws 1937, chapter 89) amended tbe statute, C. S., 649, so as to permit correction of “an error or omission . . . made in tbe affidavit or certificate of counsel,” by filing “an amended affidavit or certificate” . . . But tbe amendment does not go so far as to permit tbe filing of an affidavit of tbe party appealing or certificate of counsel wben no such affidavit or no such certificate was made and filed witbin tbe time prescribed by statute. Hence, as no certificate of counsel appears to have been made and filed in tbe present case as required by tbe statute, tbe motion to dismiss is appropriate, and same is allowed. Appeal dismissed.