Franklin v. Gentry, 222 N.C. 41 (1942)

Sept. 23, 1942 · Supreme Court of North Carolina

222 N.C. 41

BESSIE FRANKLIN et al. v. ROY GENTRY et al.

(Filed 23 September, 1942.)

Appeal and Error § 12—

Where affidavit, upon which order for pauper appeal was allowed, was not made during the term or within five days thereafter, O. S., 649, the jurisdiction of the Supreme Court is defeated, and the appeal will be dismissed.

Appeal by plaintiff from Ervin, Special Judge, at December Special Term, 1941, of MadisoN.

Civil action to set aside deeds for alleged mental incapacity on tbe part of grantor and undue influence on tbe part of grantees.

Upon denial of tbe allegations of tbe complaint, and issues joined, tbe jury returned a verdict in favor of tbe defendants. From judgment tbereon, tbe plaintiff appeals, assigning errors.

Calvin R. Edney and Carl R. Stuart for plaintiffs, appellants.

Guy V. Roberts and John H. McElroy for defendants, appellees.

Per Curiam.

A careful perusal of tbe record leaves us witb tbe impression tbat no reversible error bas been shown, and tbat tbe verdict and judgment should be upheld. However, it appears tbat tbe affidavit, upon- which tbe order of appeal in forma pauperis was allowed, was not made during tbe term or within five days thereafter as required by C. S., 649. See Powell v. Moore, 204 N. C., 654, 169 S. E., 281; McIntire v. McIntire, 203 N. C., 631, 166 S. E., 732. This defeats our jurisdiction. Berwer v. Ins. Co., 210 N. C., 814, 188 S. E., 618; S. v. Mitchell, 221 N. C., 460. “Giving bond on appeal, or granting leave to appeal without bond, are jurisdictional, and, unless tbe statute is complied witb, 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, 65 S. E., 762.

Appeal dismissed.