Armstrong v. Home Service Stores, Inc., 203 N.C. 231 (1932)

Sept. 28, 1932 · Supreme Court of North Carolina
203 N.C. 231
MAT LEE ARMSTRONG v. HOME SERVICE STORES, Incorporated

MAT LEE ARMSTRONG v. HOME SERVICE STORES, Incorporated.

(Filed 28 September, 1932.)

Appeal and Error E a — Where necessary parts of record proper are not ’ sent up the appeal will be dismissed.

Tbe pleadings on wbicb tbe case is tried, tbe issues, and tbe judgment appealed from are necessary parts of tbe record proper, Rule 19(1), and where no statement of case on appeal bas been settled by agreement or otherwise and tbe record fails to contain tbe necessary parts and is too meager to authorize a determination of tbe question sought to be presented tbe appeal will be dismissed.

Appeal by H. Bryan Duffy from Oranmer, J., at February Term, 1932, of CRAVEN.

Claim for preference apparently filed in a receivership proceeding, wbicb resulted in a denial of tbe claim, and claimant appeals.

Charles L. Abernethy, Jr., for H. Bryan Duffy.

Gt. A. Barden for Carmichael, receiver.

Stacy, C. J.

From an order made at the February Term, 1932, Craven Superior Court, notice of appeal was entered by “Plaintiff, H. Bryan Duffy,” who was allowed thirty days to make out and serve *232statement of ease on appeal, and “Defendant, Receiver,” given thirty days thereafter to prepare and file exceptions or conntercase. No statement of case on appeal has been settled by agreement or otherwise. The petition and answer upon which the claim was heard are not in the record. It is provided by Rule 19(1) that “the pleadings on which the ease is tried, the issues, and the judgment appealed from shall be a part of the transcript in all cases.” Failure to send up necessary parts of the record proper has uniformly resulted in dismissal of the appeal. Riggan v. Harrison, ante, 191; Everett v. Fair Association, 202 N. C., 838; Pruitt v. Wood, 199 N. C., 788, 156 S. E., 126; Waters v. Waters, ibid., 667, 155 S. E., 564.

Appellant’s statement of case was served 3 September, long after time for serving it had expired. Time for filing exceptions or countercase has not yet expired, if appellant’s statement was served under agreement of extension or waiver.

It may be presumed perhaps that a proceeding, entitled as above, is pending in the Superior Court of Craven County, though this fact has not been made to appear in any accredited way, except by the clerk’s certificate. The record is too meager to authorize a determination of the question sought to be presented.

Appeal dismissed.