Bumgarner v. Sherrill, 1 N.C. App. 173 (1968)

April 17, 1968 · North Carolina Court of Appeals

1 N.C. App. 173

A. L. BUMGARNER v. WAYNE L. SHERRILL.

(Filed 17 April 1968.)

1. Courts § 7—

Jurisdiction of the Superior Court over appeals from the District Court continues for civil cases tried in the District Court for which notice of appeal was given on or before 30 September 1967. G.S. 7A-35(a) ; Supplementary Rules of the Supreme Court No. 14.

3. Appeal and Error § 1—

Tbe Court of Appeals has jurisdiction in civil cases in which notice of appeal is given on and after 1 October 1967 to the Appellate Division from the District Court. G.S. 7A-35 (c).

3. Courts § 7; Appeal and Error § 1—

Where notice of appeal was given before 1 October 1967 in a civil case in the District Court, the Court of Appeals is without jurisdiction to entertain appeal from the District Court, and the appeal is accordingly dismissed.

Appeal by defendant from Snyder, J., at the 25 September 1967 Civil Session of the District Court of Catawba County.

This is a civil action which was originally instituted in the Superior Court for Catawba County on 31 October 1966 in which plaintiff sought judgment against defendant in the sum of $550.00 for rental alleged to be due on real property and in the sum of $1170.00 for damages alleged to have been caused to plaintiff’s property by acts of the defendant. Defendant answered, denying liability and counterclaiming for $2905.98 alleged to be due him from plaintiff by reason of expenditures made by defendant in improving plaintiff’s land. After the case was instituted and effective on the first Monday in December, 1966, the District Court was established in the Twenty-fifth Judicial District, which included Catawba County. On 4 September 1967 Judge Sam J. Ervin, III, the Judge presiding over the Superior Court of Catawba County, on motion of plaintiff signed an order transferring the case to the Civil Docket of the District Court Division of the General Court of Justice. A jury trial being waived, the case was heard on 25 September 1967 before District Judge Keith S. Snyder, who signed judgment dated 25 September 1967 and filed 27 September 1967 in which he made findings of fact and adjudged that plaintiff recover a total of $950.00 of the defendant for rental and damages. In open court at the time of the hearing on 25 September 1967 defendant, through counsel, gave notice of appeal.

William H. Chamblee for defendant appellant.

J. Carroll Abernethy, Jr., for plaintiff appellee.

Parker, J.

Insofar as the record docketed in this Court discloses, the only notice of appeal from the judgment of the District Court in this case was that given by defendant’s counsel in open court at the time of the hearing before the District Judge on 25 September 1967. The transcript of the proceedings at that hearing does not disclose to what court it was intended the appeal should be taken. G.S. 7A-35(a) provides-that the jurisdiction of the Superior Court over civil appeals from the District Court continued for civil cases tried in the District Court in which notice of appeal was given on or before 30 September 1967. See also, Rule 14 of Supplementary Rules of the Supreme Court, 271 N.C. at page 748. Causes in which notice of appeal is given on and after 1 October 1967 to the Appellate Division from the District Court in civil cases shall be filed with the Clerk of the Court of Appeals. G.S. 7A-35 (c). Since the notice of appeal in this case was given before 1 October 1967, the appeal should have been made to the Superior Court, and the Court of Appeals has no jurisdiction. Accordingly the appeal is

Dismissed.

Mallard, C.J., and Brock, J., concur.