J. O. Plott Co. v. H. K. Ferguson Construction Co., 198 N.C. 782 (1930)

June 6, 1930 · Supreme Court of North Carolina

198 N.C. 782

J. O. PLOTT COMPANY v. H. K. FERGUSON CONSTRUCTION COMPANY et al.

(Filed 6 June, 1930.)

1. Appeal and Error E a — Where the record does not contain the complaint in the action the appeal will be dismissed.

It is required by the rules of practice in the Supreme Court that the complaint be made a part of the record proper in all cases, Rule 19, ■ section 1, and where on appeal the record contains only a synopsis of the complaint the appeal will be dismissed.

S. Appeal and Error A e — Where record does not squarely present the question of the constitutionality of a statute it will not he decided.

The Supreme Court will not anticipate questions of constitutional law in advance of the necessity of deciding them, nor will it give advisory opinions on such questions, and where the record in a case on appeal is so incomplete that it may not be determined that the constitutionality of a statute is squarely presented, the question will not be decided.

Appeal by plaintiff from Schenck, J., at March Term, 1930, of BuNcombe.

John H. Cathey for plaintiff.

Bernard, Williams & Wright for defendant, Deposit Company.

Stacy, C. J.

It appears from the statement of case on appeal, which constitutes the entire record sent to this Court, that the constitutionality of chapter 613, Public-Local Laws, 1927, is sought to be presented for decision. But as only a synopsis of the complaint has been sent up, we are not in position to say that the question is squarely presented. "We are disposed to think that it is not. At any rate, no error appears on the face of the record. Appellate courts never anticipate questions of constitutional law in advance of the necessity of deciding them; nor do they venture advisory opinions on such questions. Wood v. Braswell, 192 N. C., 588, 135 S. E., 529; Person v. Doughton, 186 N. C., 723, 120 S. E., 481.

It is provided by Rule 19, sec. 1, of the Rules of Practice in the Supreme Court that “the pleadings on which the case is tried, the issues and the judgment appealed from shall be a part of the transcript in all cases.” 192 N. C., p. 847. The appeal, therefore, must be dismissed for failure to send up the necessary parts of the record proper. Schwarberg v. Howard, 197 N. C., 126, 147 S. E., 741.

Appeal dismissed.