Brantley v. Meekins

HEDRICK, Judge. Defendant filed a motion in this Court to dismiss plaintiff’s appeal for the reason that the case on appeal was not served on [685] defendant within the time allowed. Plaintiff, in his response to the defendant’s motion, does not deny that he failed to timely serve the case on appeal, but contends his only assignment of error relates solely to the record proper. In Houck v. Overcash, 15 N. C. App. 581, 190 S.E. 2d 297 (1972), rev’d. on other grounds, 282 N.C. 623, 193 S.E. 2d 905 (1973), it is stated: “Where appellant’s assignments of error all relate to the record proper it is not necessary that a case on appeal be served on the appellee. Holsomback v. Holsomback, 273 N.C. 728, 161 S.E. 2d 99. ‘In the absence of a case on appeal served within the time fixed by the statute, or by valid enlargement, the appellate Court will review only the record proper and determine whether errors of law are disclosed on the face thereof.’ Machine Co. v. Dixon, 260 N.C. 732, 133 S.E. 2d 659.” Thus, defendant’s motion to dismiss the appeal is overruled. A review of the record proper discloses that plaintiff’s alleged cause of action against defendant Meekins accrued on 26 November 1965 and that plaintiff’s complaint was filed on 26 November 1971. G.S. 1-52 enumerates the types of actions which are subject to a three year statute of limitations and among these is the type of action which is now before us. See G.S. 1-52(5). Therefore, since it is clear on the face of the record proper that the present action is barred by the three year statute of limitations, we hold that the trial court correctly entered summary judgment in favor of the defendant. Affirmed. Judges Campbell and Parker concur.