In re De Febio, 237 N.C. 269 (1953)

Feb. 25, 1953 · Supreme Court of North Carolina
237 N.C. 269


(Filed 25 February, 1953.)

I. Appeal and Error § 16—

An appeal from a judgment rendered in tbe Superior Court prior to tbe beginning of tbe Fall Term of tbe Supreme Court must be taken to the Fall Term of tbe Supreme Court, and tbe cause docketed twenty-one days prior to the call of the district to which it belongs, and failure to docket within the time prescribed necessitates dismissal, since the rule is mandatory. Rule of Practice in the Supreme Court No. 5.

3. Courts § 7%—

The denial of motion by respondent parents for modification of order committing the custody of their minor children to the State Board of Public Welfare does not preclude the parents from later moving for modification of the judgment on the ground of changed conditions. G.S. 110-36.

Appeal by respondents from Williams, J., May Term, 1952, of Dabe.

Tbis proceeding, originally instituted in tbe Juvenile Court of Dare County, involves tbe custody of these minor children: Theodore Thomas De Febio, age ten; Dominick De Febio, age six; and Dennis De Febio, age ten, tbe first two being tbe natural children of tbe respondents, Frank J. De Febio and wife, Tbeo. T. De Febio, and tbe latter purportedly being tbe adoptive child of tbe respondents. Tbe children came to Dare County with tbe respondent Frank J. De Febio from bis former abode in or near Washington, D. C., during tbe month of January, 1950, and thereafter lived with him in a portion of tbe property formerly known as the Paul Garniel Hill Coast Guard Station near Duck, North Carolina, north of Nags Head.

On 17 April, 1951, Goldie H. Meekins, Superintendent of Public Welfare of Dare County, filed petition in tbe Juvenile Court alleging in effect that within tbe meaning of tbe law tbe children were neglected children (G.S. 110-21), and praying that they be declared wards of tbe State and committed to tbe custody of tbe North Carolina State Board of Public Welfare for suitable care and supervision.

After due notice to tbe respondents, tbe proceeding was beard before tbe Judge of tbe Juvenile Court on 22 May, 1951, with both respondents *270being present. Both sides offered evidence. At the conclusion of the hearing the court found facts and entered judgment finding and adjudging that the children were neglected (G.S. 110-29), and ordered them committed to the custody of the North Carolina State Board of Public Welfare, to be placed in a suitable institution or family home for care and supervision. The children were placed in a boarding house in Hertford, North Carolina, under the immediate supervision of the Dare County Welfare Department.

Thereafter the respondent parents moved the Judge of the Juvenile Court for modification of the judgment, and on 24 August, 1951, judgment was entered denying the motion.'

From this judgment the respondents appealed to the Superior Court of Dare County.

The appeal came on for hearing and was heard before Judge Williams at the May Term, 1952. By consent it was agreed that Judge Williams might take the case under advisement and render judgment out of term and out of the county at the June Term, 1952, of the Superior Court of Pasquotank, and this was done. The judgment so entered by Judge Williams affirms the former judgments of the Juvenile Court.

To the judgment so entered the respondents excepted and appealed therefrom to this Court.

W. Dennis Hollowell for respondents, appellants.

No counsel contra.

JohnSON, J.

The judgment appealed from was entered, by consent, at the June Term, 1952, of Pasquotank, as of the May Term, 1952, of Dare.

The transcript of the record was not docketed here until 6 December, 1952. It was the duty of the appellants to docket the appeal at the Fall Term, 1952, of this Court, twenty-one days before the call of the docket of the First District, to which the case belongs. Rule 5, Rules of Practice in the Supreme Court, 221 N.C. 546, as amended. See 233 N.C. 749.

This is a mandatory rule of procedure with us. It may not be abrogated by consent or otherwise. Pruitt v. Wood, 199 N.C. 788, 156 S.E. 126. Failure to docket within the time prescribed works a loss of the right of appeal and necessitates dismissal. Jones v. Jones, 232 N.C. 518, 61 S.E. 2d 335; S. v. Presnell, 226 N.C. 160, 36 S.E. 2d 927; S. v. Watson, 208 N.C. 70, 179 S.E. 455; Pruitt v. Wood, supra.

It follows that the appeal must be dismissed, and it is so ordered. This, of course, without prejudice to respondents’ rights to move, if so advised, in the Juvenile Court of Dare County for modification of the judgment on the ground of changed conditions. G.S. 110-36.

Appeal dismissed.