Brewer v. Mineola Manufacturing Co., 161 N.C. 211 (1912)

Nov. 7, 1912 · Supreme Court of North Carolina

161 N.C. 211

JUNIE BREWER v. MINEOLA MANUFACTURING COMPANY.

(Filed 7 November, 1912.)

Appeal and Error — Case on Appeal — Unsigned Entries of Record— Stenographer’s Notes — Concise Statement — Interpretation of Statutes.

When the stenographer’s full notes of the evidence taken on the trial of a case on appeal are transcribed in the record, immediately followed by an unsigned entry, repudiated by appel-lee’s counsel, that “the record, stenographer’s notes, the judgment, and the exception to the nonsuit shall constitute the case on appeal to, the Supreme Court,” the case on appeal is not properly constituted in this Court, and, on motion of appellee’s counsel, will he dismissed and the judgment below affirmed. The attention of the profession is again directed to the line of cases holding that a full transcript of the stenographer’s notes of the evidence is not in conformity with the requirements of Re-visal, sec. 591.

Appeal by plaintiff from Whedbee, J., at August Term, 1912, of GUILFORD.

Civil action. From a judgment of nonsuit tbe plaintiff appeals.

Tbe facts are sufficiently stated in tbe per curiam opinion.

J ohn A. Barringer, Adams & McLean for plaintiff.

F. P. Hobgood, Jr., for (defendant.

Per Curiam.

Defendant’s attorney moves in tbis Court to dismiss tbe appeal and affirm tbe judgment for tbe absence of a properly constituted case on appeal.

Tbe stenographer’s full notes of tbe trial in tbe Superior Court are copied in tbe record. Immediately following them we find tbe following entry: “Tbe record, stenographer’s notes, tbe judgment and tbe exception to tbe nonsuit shall constitute tbe case on appeal to tbe Supreme Court.”

Tbis is not signed by either tbe presiding judge or by tbe counsel for tbe plaintiff or defendant. It is repudiated by tbe counsel for tbe defendant in tbis Court, who moves to affirm tbe judgment for lack of a case on appeal. Tbe motion must be allowed.

There appears to have been no attempt to make out a case on appeal in conformity with tbe statute. That offered as a case on appeal is neither signed by tbe judge nor by tbe counsel.

In this connection we again call tbe attention of tbe profession to what has been said on tbe subject of “Cases on Appeal” in Gressler v. Asheville, 138 N. C., 483; Bucken v. R. R., 151 N. C., 444; and in Shipper v. Lumber Co., 158 N. C., 322.

In tbe latter case it is held that: “When tbe appellant has set out in tbe case on appeal tbe transcribed stenographer’s notes, be fails to prepare a concise statement of tbe case as required by Eevisal, 591, and bis appeal will be dismissed ifnder Eule 22 of tbe Supreme Court when upon examination no error is found in the record proper.”

Appeal dismissed and judgment affirmed.