Hicks v. Royal, 122 N.C. 405 (1898)

1898 · Supreme Court of North Carolina

122 N.C. 405

R. W. HICKS v. J. H. ROYAL.

Appeal — Rule — Printing Exhibit — Dismissal of Appeal.

Where an exhibit, made a part of the'pleadings and necessary to the understanding of a plea in the action, is not printed as a part of the record on appeal, the appeal will be dismissed under Rule 28.

Civil action tried before MeZams, J., at January Term, 1898, of New Hanover Superior Court. There was a judgment for the defendants and plaintiff appealed. In this Court the defendant (appellee) moved to dismiss under Rule 28.

Messrs. H. E. Faison and Frank McNeill for plaintiff (appellant).

Messrs. J. L. Stewart, J. D. Kerr and J. D. Bellamy for defendant.

Per Curiam:

An exhibit which is made a part of the pleadings and is material to understanding the plea of < ‘another action pending for the same' cause” is not printed. Even under the former rule, the motion to dismiss would have been allowed. Fleming v. McPhail, 121 N. C., 183; Barnes v. Crawford, 119 N. C., 127. Much the more so is this true under the present Rule 28, (121 N. C., 695) which, to avoid just such disputes as to the materiality of omitted parts, requires the entire transcript on appeal to be printed.

Appeal dismissed.