Dunn v. North Carolina State Highway Commission

Britt, J. "It is provided by statute, G.S. 1-279, that the appeal from a judgment rendered in term must be taken within ten days after its rendition, unless the record shows an appeal taken at the trial, which is sufficient. And, it is provided by statute, G.S. 1-280, that within the time ‘prescribed in G.S. 1-279, the appellant shall cause his appeal to be entered by the clerk on the judgment docket and notice thereof to be given to the adverse party unless the record shows an appeal taken or prayed at the trial, which is sufficient. Interpreting these two statutes, the Supreme Court of North Carolina has held that these provisions are jurisdictional, and unless complied with, the .Supreme Court acquires no jurisdiction of the appeal and must dismiss it. Aycock v. Richards, 247 N.C. 233, 100 S.E. 2d 379 (1957). See also Mason v. Commissioners of Moore, 229 N.C. 626, 51 S.E. 2d 6, and cases cited. The Court of Appeals is bound by the same principle of law. Judge Brewer's findings indicate that plaintiff’s attorney did not receive actual notice of the judgment entered at the September 1967 Session until 9 October 1967. This finding does not alleviate plaintiff’s predicament. When a civil action' is regularly calendared for hearing at a session of court, all parties are bound to take "notice of all motions made and proceedings had in the action in open court during the session. Speas v. Ford, 253 N.C. 770, 117 S.E. 2d 784 (1960); Collins v. Highway Comm., 237 N.C. 277, 74 S.E. 2d 709. Therefore, plaintiff was charged with the responsibility of giving notice of appeal within ten days after. 19. September. 1967. Judge Brewer’s order'dated 18 December 1967, which had the effect of dismissing plaintiff’s purported appeal, was proper. Teague v. Teague, 266 N.C. 320, 146 S.E. 2d 87. Nevertheless, in this case, this Court has carefully reviewed the record on appeal and finds no prejudicial error. It is well settled that the Industrial Commission’s findings of fact are conclusive on appeal when supported by competent evidence, except for jurisdictional findings. This is true even though there is evidence which would support findings to the contrary. Bailey v. Dept. of Mental Health, 272 N.C. 680, 159 S.E. 2d 28 (1968); Mica Co. v. Bd. of Ed., 246 N.C. 714, 100 S.E. 2d 72. There was sufficient competent evidence before the Hearing Commissioner to support his decision and order. The judgment of Judge Brewer dismissing the action is Affirmed. Mallard, C.J., and Brock, J., concur.