Brown ex rel. Brown v. S. H. Kress & Co., 207 N.C. 722 (1935)

Jan. 28, 1935 · Supreme Court of North Carolina

207 N.C. 722

DOROTHY RICKMAN BROWN, by Her Next Friend, GEORGE C. BROWN, v. S. H. KRESS & COMPANY and B. A. MARSHALL.

(Filed 28 January, 1935.)

Appeal and Erroi' C e — Requisites of appeals in forma pauperis.

In pauper appeals it is required tliat appellant file the statutory affidavit in order to confer jurisdiction on the Supreme Court, C. S., 649, and a provision in the judgment allowing plaintiff to appeal in forma pauperis does not relieve plaintiff of the necessity of filing the jurisdictional affidavit or the twenty-five printed or mimeographed copies of her brief required by the Rules.

Appeal from Alley, J., at September Term, 1934, of Guilfoed.

Appeal dismissed.

This action was instituted by the plaintiff in the municipal court of the city of High Point against the corporate defendant and its employee to recover damages in the sum of twenty thousand dollars, alleged to have been caused by defamation of her character and false imprisonment of her person. The corporate defendant duly filed a petition for. removal of the cause from the State Court to the Federal Court, grounded upon diversity of citizenship and fraudulent joinder of parties defendant. The clerk and the judge, respectively, of the court of first instance denied the petition, which in due course upon appeal was beard in tbe Superior Court, where tbe petition was granted, and tbe case ordered removed to tbe Federal Court. To tbe order of removal tbe plaintiff excepted and appealed to tbe Supreme Court, assigning errors.

York & York for plaintiff appellant.

Dalton & Pickens and Byron Hayworth for appellees.

Per Curiam.

Tbe appellant failed to file any appeal bond, and also failed to file twenty-five printed or mimeographed copies of her brief, ■ but did file seven typewritten copies thereof.

While tbe judgment appealed from contains the following: “It further appearing to tbe court that tbe plaintiff is without property or other means of giving security for costs on appeal, . . . it is further ordered that tbe plaintiff be and she is hereby allowed to appeal in forma pauperis” it appears that appellant failed to “make affidavit that be (she) is unable by reason of bis (her) poverty to give tbe security required by law, and that be (she) is advised by counsel learned in tbe law that there is error in matter of law in tbe decision of tbe Superior Court in said action,” as required by C. S., 649, for appeals in forma pauperis. Tbe requirements of tbe statute being jurisdictional, tbe appellant was not relieved by tbe provision in tbe judgment of tbe court from filing tbe undertaking made necessary by C. S., 646, to render an appeal effectual, or from filing tbe twenty-five printed or mimeographed copies of her brief required by Eule 22 of this Court. “Giving-bond on appeal, or tbe granting leave to appeal without bond, are jurisdictional, and, unless tbe statute is complied with, tbe appeal is not in this Court, and we can take no cognizance of tbe case, except to dismiss it from our docket.” Honeycutt v. Watkins, 151 N. C., 652. In Waller v. Dudley, 193 N. C., 354, we found it necessary to say: “We again call tbe attention of tbe profession to tbe fact that tbe rules governing appeals are mandatory and not directory. Tbe Court has not only found it necessary to adopt them, but equally necessary to enforce them and to enforce them uniformly.”

However, a perusal of tbe record filed here leaves with us tbe impression that this case is governed by Rea v. Mirror Co., 158 N. C., 24, and that bis Honor was correct in bolding, upon tbe defendant’s petition, that it should be removed to tbe Federal Court, where, of course, tbe plaintiff would have the right to traverse tbe petition upon a motion to remand.

Appeal dismissed.