Allen v. Hammond, 122 N.C. 754 (1898)

May 3, 1898 · Supreme Court of North Carolina

122 N.C. 754

D. W. ALLEN v. F. M. HAMMOND.

(Decided May 3, 1898.)

Appeal — Practice—Incomplete Record.

Where the consideration of the complaint is essentia] to the determination of the questions involved on appeal and the complaint is not in the record on appeal, and appellant makes no motion for a cer-tiorari to perfect the record, the appeal will he dismissed.

Civil action tried at Fall Term, 1897, of Madison Superior Court, before Norwood, J. Prom a judgment for the defendant the plaintiff appealed. The record on appeal does not contain the complaint. In this court the defendant (appellee) moved to dismiss.

Mr. J. M. Ouclger, Jr., for defendant (appellee).

No Counsel contra.

Per Curia^n:

There is no complaint, answer or summons sent up, only the case on appeal; and the complaint is essential to be considered in passing on this controversy. Defects in the transcript are often remedied by certiorari when there is no laches on the part of the appellant, and sometime by the court’s sending down a certiorari ex mero motu to supply merely formal parts of the transcript. State v. Preston, 104 N. C., 733; State v. Beal, 119 N. C., 809; State v. Daniel, 121 N. C., 574. But here the defect is in a material respect and no motion for certiorari has been made by the appellant. He has not perfected his record on appeal and not having paid due attention to it, let the motion to dismiss be •entered.

Appeal dismissed.