Seaboard Air Line Railway Co. v. Brunswick County

CoNNOR, J. It does not appear on the record filed in this Court by the defendant that defendant excepted to the judgment or appealed therefrom to this Court. The judgment is set out in the case on appeal which was served on counsel for plaintiff. There are no entries, however, showing any exception by defendant, or any notice of appeal to the plaintiff, either in open court or within the time prescribed by statute. C. S., 641; C. S., 642. The appeal docketed in this Court by the defendant must therefore be dismissed. Corp. Com. v. R. R., 185 N. C., 435, 117 S. E., 563; Howell v. Jones, 109 N. C., 102, 13 S. E., 889. The record filed in this Court must show at least that an appeal was taken from the judgment. Otherwise this Court acquires no jurisdiction of the action. Const. of N. C., Art. IY, sec. 8. The assignments of error shown in the transcript filed in this Court are not based upon exceptions appearing in the case on appeal. They *551 will therefore not be considered. They do not supply the want of exceptions. Boyer v. Jarrell, 180 N. C., 479, 105 S. E., 9. The question discussed on the hearing in this Court, to wit: Whether in the absence of a demand on the treasurer of the county, within thirty days after the payment to the sheriff, under protest in writing, for the refund of money paid to him for a tax illegally levied by the county, the taxpayer is entitled to recover in an action instituted under C. S., 7979, is not decided for the reason that this Court is without jurisdiction of the action. In this ease, the demand for refund was made, within the required time, of the sheriff, to whom the money was paid, under protest, in writing, and also of the board of county commissioners; no demand, however, was made of the treasurer of the county, as required by the statute. Ordinarily, where an action is authorized by statute, and can be maintained only because of statutory authority, the provisions of the statute must be strictly complied with. A substantial compliance is not sufficient. The appeal is Dismissed.