Clark v. Clark, 225 N.C. 687 (1945)

Dec. 12, 1945 · Supreme Court of North Carolina

225 N.C. 687

C. LEE CLARK v. LUCY WHITE CLARK.

(Filed 12 December, 1945.)

Appeal and Error § 12—

The requirements of the statute, G. S., 1-288, relating to appeals to this Court from judgments of the Superior Court in a civil action, without making the deposit or giving the security required by law for such appeals, are mandatory and jurisdictional, and unless the statute is complied with, the appeal is not in this Court, and we can take no cognizance of the case, except to dismiss it from our docket.

Appeal by plaintiff from Clement, J., at April Term, 1945, of Greensboro Division of Guilford.

Civil action for absolute divorce on ground of two years separation, instituted in the municipal court of the City of High Point, and heard in Superior Court upon appeal thereto by plaintiff from order of judge of said municipal court, setting aside judgment rendered therein in favor of plaintiff. The presiding judge of Superior Court, by judgment entered, affirmed the findings of fact and order of the judge of the municipal court. Plaintiff gave notice of appeal therefrom to Supreme Court, and in due time filed affidavit, as required by the statute, G. S., 1-288, to be allowed to appeal without making the deposit or giving the security required by law for such appeal. Thereupon, the presiding judge of the Superior Court, “upon the foregoing affidavit” entered order allowing plaintiff to appeal as prayed, and on 6 November, 1945, the record and case on appeal were filed in the office of the Clerk of the Supreme Court in due time for appeals from the 12th Judicial District at Fall Term, 1945.

Thereafter, on 27 November, 1945, when the Court resumed its sitting for hearing of appeals from the 12th Judicial District, defendant ap-pellee, through her counsel moved to dismiss the appeal in this action for failure of appellant “to file with, bis affidavit for permission to appeal in forma pauperis, a written statement from a practicing attorney that be bas examined tbe affiant’s case and tbat be is of tbe opinion tbat tbe decision of tbe Superior Court in said action is contrary to law as required by G. S., 1-288,” and filed in support thereof certificate of the assistant clerk of tbe Superior Court of Guilford County to tbe effect “tbat all papers relating to tbe application of tbe plaintiff to appeal in forma pauperis in tbe above entitled case were delivered to counsel for tbe plaintiff at tbe time tbe record on appeal herein was certified and signed, and tbat there is not now on file in tbe office of tbe clerk of tbe Superior Court of Guilford County either tbe original or any copy of any written statement from a practicing attorney tbat be bas examined tbe case of appellant and tbat be is of tbe opinion tbat tbe decision in tbe Superior Court in said action is contrary to law.”

Thereupon, on 28 November, 1945, before tbe case was reached for bearing of argument, tbe attorney for appellant filed in this Court a paper designated as “certificate of counsel,” which reads: “This is to certify tbat I have examined appellant’s case on appeal and am of tbe opinion tbat tbe decision of tbe Superior Court, in tbe above entitled action, is contrary to law. This tbe 28th day of November, 1945,” and signed in tbe name of, and as “attorney for appellant.”

Walser & Wright for plaintiff, appellant.

Moseley & Holt for defendant, appellee.

Winborne, J.

Tbe motion to dismiss tbe appeal must be allowed. Tbe requirements of tbe statute relating to appeals to Supreme Court from judgment of Superior Court, in a civil action, G. S., 1-288, formerly C. S., 649, without making tbe deposit or giving tbe security required by law for such appeal are mandatory and 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, 65 S. E., 762. See, also, among others, these cases: Riggan v. Harrison, 203 N. C., 191, 165 S. E., 358; Hanna v. Timberlake, ibid., 556, 166 S. E., 733; McIntire v. McIntire, ibid., 631, 166 S. E., 731; Powell v. Moore, 204 N. C., 654, 169 S. E., 281; Noble v. Pritchett, ibid., 804, 169 S. E., 618; Brown v. Kress & Co., 207 N. C., 722, 178 S. E., 248; Lupton v. Hawkins, 210 N. C., 658, 188 S. E., 110; Berwer v. Ins. Co., 210 N. C., 814, 188 S. E., 618; Gilmore v. Ins. Co., 214 N. C., 674, 200 S. E., 407; Franklin v. Gentry, 222 N. C., 41, 21 S. E. (2d), 828.

In Powell v. Moore, supra (1933), where there is full discussion of tbe provisions of tbe statute as it then appeared in section 649 of Consolidated Statutes of 1919, it is said: “It is not tbe policy of our law to deny to any litigant bis right of appeal, but inasmuch as only questions of law are to be determined in tbe Supreme Court, wben tbe party cast in a civil action is unable to make tbe deposit or give 'the security required by law for bis appeal, be is reasonably required (1) to make affidavit, witbin five days, tbat be is unable by reason of bis poverty to give tbe security required by law, and (2) tbat be is advised by counsel learned in tbe law there is error in matter of law in tbe decision of tbe Superior Court — which affidavit (3) must be accompanied by a written statement from a practicing attorney of said Superior Court tbat be has examined tbe affiant’s case, and is of opinion tbat tbe decision of. tbe Superior Court in said action is contrary to law, and (4) tbe appeal, when passed upon and granted by tbe clerk, shall be witbin ten days from tbe expiration by law of said term of court.”

Thereafter, tbe General Assembly of 1937 (Public Laws 1937, chapter 89) amended tbe statute, C. S., 649, so as to permit correction of “an error or omission . . . made in tbe affidavit or certificate of counsel,” by filing “an amended affidavit or certificate” . . . But tbe amendment does not go so far as to permit tbe filing of an affidavit of tbe party appealing or certificate of counsel wben no such affidavit or no such certificate was made and filed witbin tbe time prescribed by statute.

Hence, as no certificate of counsel appears to have been made and filed in tbe present case as required by tbe statute, tbe motion to dismiss is appropriate, and same is allowed.

Appeal dismissed.