Hanna v. Timberlake, 203 N.C. 556 (1932)

Nov. 23, 1932 · Supreme Court of North Carolina

203 N.C. 556

JAMES L. HANNA and LILLIE G. HANNA v. J. W. TIMBERLAKE, Trustee, et al.

(Filed 23 November, 1932.)

Appeal and Error E g — Affidavit for appeal in forma pauperis must contain averment that counsel lias advised that there is error.

The affidavit for appeal m forma pauperis must contain an averment that appellant is advised by counsel learned in the law that there is error of law in the decision appealed from, C. S., 649, and the matter is jurisdictional and where the affidavit is defective in this respect the appeal will be dismissed. As to whether the clerk may authorize an appeal in forma pauperis where the trial court has fixed ajipeal bond, qucere?

Appeal by plaintiff, Lillie Gf. Hanna, from Warliclc, J., at Chambers in Charlotte, 30 August, 1932. From G-astoN.

Civil action to restrain foreclosure sale under power contained in deed of trust.

From judgment dissolving temporary restraining order, entered 30 August, 1932, the plaintiff gave notice of appeal. Appeal bond fixed at $100. Thereafter, 5 October, 1932, on affidavit which omits to aver appellant “is advised by counsel learned in the law that there is error of law in the decision of the Superior Court in said action,” the clerk of the Superior Court signed an order allowing plaintiff to appeal in forma pauperis.

Motion by appellees to dismiss appeal.

J. L. Iiamme for plaintiff.

Cherry & Hollmuell for defendants.

Per Curiam.

The Court is without jurisdiction to entertain the appeal, and the same will be dismissed on authority of Honeycutt v. Watkins, 151 N. C., 652, 65 S. E., 762.

The attempted appeal is in forma pauperis, and the affidavit, filed more than ten days after entry of judgment, is defective, in that, it does not contain the averment, required by C. S., 649, that appellant “is advised by counsel learned in the law that there is error of law in the decision of the Superior Court in said action.” This is a jurisdictional requirement. Riggan v. Harrison, ante, 191; Russell v. Hearne, 113 N. C., 361, 18 S. E., 711; S. v. Gatewood, 125 N. C., 694, 34 S. E., 543.

Furthermore, it may be doubted whether the clerk had authority to authorize an appeal in forma pauperis, even upon proper affidavit and certificate of counsel filed in apt time, in the face of the order by the judge fixing the appeal bond at $100. As to this point, however, we make no definite ruling. The question is not presently presented. S. v. Divine, 69 N. C., 390; S. v. Harris, 114 N. C., 830, 19 S. E., 154.

Appeal dismissed.