Berwer v. Union Central Life Insurance, 210 N.C. 814 (1936)

Dec. 16, 1936 · Supreme Court of North Carolina

210 N.C. 814

MARGARET RUSHING BERWER, and MARGARET RUSHING BERWER, Guardian of WALTER F. RUSHING and WILLIAM A. RUSHING, Minors, v. THE UNION CENTRAL LIFE INSURANCE COMPANY.

(Filed 16 December, 1936.)

Appeal and Error C e — Defect in affidavit for appeal in forma pauperis may not be cured by supplemental affidavit filed after five-day period.

Where tbe jurisdictional affidavit for leave to appeal in forma pauperis fails to aver that appellant is advised by counsel learned in the law that there is error of law in the judgment, C. S., 649, the affidavit is fatally defective and the appeal must be dismissed, and the defect may not be cured by an additional affidavit filed after the expiration of the five days prescribed by the statute, or one filed after the date for docketing the appeal.

Appeal by tbe plaintiffs from Barnhill, J., at September Term, 1936, of Columbus.

Civil action to correct boundary in deed and to recover for rents lost by reason of error therein.

Robert W. Davis and 8. J. Bennett for plaintiffs, appellants.

D. L. Carlton and Powell & Lewis for defendant, appellee.

Per Curiam.

The affidavit filed in the appeal in forma pauperis is defective, in that it does not contain the averment required by O. S., 649, that appellants are “advised by counsel learned in the law that there is error in matter of law in the decision of the Superior Court in said action.” This is a jurisdictional requirement and for that reason the appeal must be dismissed. Hanna v. Timberlake, 203 N. C., 556. See, also, an applicable discussion of this subject in Powell v. Moore, 204 N. C., 654.

On 16 November, 1936, the appellants made an additional affidavit containing the averment omitted from the original affidavit and on the day following obtained an additional order from the trial judge allowing them to appeal in forma pauperis. This did not cure the omission, however, for the reason that the additional affidavit was not made within the five days prescribed by C. S., 649, and for the further reason that said affidavit and order based thereon were not filed in this Court until after the date for docketing the appeal here, 10 November, 1936.

Appeal dismissed.