Respass v. Bonner

WiNBOBNE, J. The right of appeal must be exercised in accordance with the established rules and procedure governing appeals. S. v. Moore, 210 N.C. 686, 188 S.E. 421. Indeed, rules requiring service to be made of case on appeal within the allotted time are mandatory, and not directive. S. v. Daniels, 231 N.C. 17, 56 S.E. 2d 2, and cases cited. Hence where an appealing party fails to file his statement of case on appeal within the time allowed and fails to make application for extension of time, or for waiver of failure to file within the time prescribed, or fails to file petition for certiorari, if such procedure be available, such party loses his right to bring up the “case on appeal.” S. v. Moore, supra. In this connection, the record docketed in this Court discloses that plaintiff, appellant, was allowed forty days in which to serve ease on appeal. And the statute Gr.S. 7-70 fixes a term of Superior Court for Martin County to begin on eleventh Monday after the first Monday in [313] September to continue for two weeks for the trial of civil cases. In 1952 this term of court began on 17 November, and, if not earlier adjourned, expired by limitation on 29 November, 1952. Forty days thereafter expired 9 January, 1953. Hence, even if the “one page case on appeal” should be considered a partial compliance with the rule requiring service of case on appeal, it was not served within the forty days allotted. So, we have here no case on appeal. The record imports verity, and the Supreme Court is bound thereby. S. v. Dee, 214 N.C. 509, 199 S.E. 730, and cases cited. See also S. v. Miller, 214 N.C. 317, 199 S.E. 89; S. v. Cannon, 227 N.C. 336, 42 S.E. 2d 343. But the failure to have a statement of case on appeal does not by itself, that is, ipso facto, work a dismissal, Parrish v. Hartman, 212 N.C. 248, 193 S.E. 18, and cases cited, but this Court may review the record proper for errors appearing upon the face of it. However, here error does not so appear. In fact, a reading of the whole record including all that plaintiff sets out therein fails to indicate prejudicial error. It would seem that a clear-cut issue was raised, and submitted by the court to the jury, as the first issue. And the jury has decided against plaintiff. For reasons stated, the judgment below will be, and is hereby Affirmed.