Cole v. Gaither, 205 N.C. 473 (1933)

Nov. 22, 1933 · Supreme Court of North Carolina

205 N.C. 473

MRS. V. E. COLE v. R. A. GAITHER et al.

(Filed 22 November, 1933.)

Appeal and Error 0 d—

An order allowing an appeal in forma pauperis may not be signed by tbe clerk more than ten days after the expiration of the term of court at which the judgment was rendered.

Appeal by plaintiff from Crammer, J., at April Term, 1933, of Wake.

Appeal dismissed.

This action was heard in the Superior Court on defendant’s demurrer to the complaint on the ground that the facts stated therein are not sufficient to constitute a cause of action. The demurrer was sustained, and judgment dismissing the action was rendered on 29 April, 1933.

The plaintiff excepted to the judgment, and gave notice in open court of her appeal to the Supreme Court. She was required by the judge to file an appeal bond in the sum of $50.00. She failed to file the bond, and on 25 May, 1933, applied to the clerk of the Superior Court of Wake County for an order allowing her to appeal in forma pauperis, as authorized by statute. The clerk granted her application, and signed the order. The appeal was thereafter docketed in the Supreme Court.

James E. Shepherd for plaintiff.

Clyde A. Douglass and Joseph C. Douglass for defendants.

Pee CueiaM.

The order allowing the plaintiff in this action to appeal in forma pauperis from the judgment of the Superior Court to this Court, was signed by the clerk more than ten days after the expiration of the term of the Superior Court at which the judgment was rendered. The clerk was without authority to sign the order on 25 May, 1933, and the appeal must for that reason be dismissed. This Court is without jurisdiction to hear the appeal. Powell v. Moore, 204 N. C., 654, 169 S. E., 281; S. v. Pike, ante, 176.

Appeal dismissed.