Richardson v. Cooke, 238 N.C. 449 (1953)

Oct. 21, 1953 · Supreme Court of North Carolina

238 N.C. 449

D. C. RICHARDSON, Plaintiff, v. NELLIE RICHARDSON COOKE, Defendant.

(Filed 21 October, 1953.)

Appeal by defendant from Stevens, J., at June Term, 1953, of Carteret.

From papers filed in this Court by defendant, as appellant, it would seem that this is a special proceeding instituted for tbe purpose of selling land for partition; that there is in tbe Clerk’s office a fund, tbe proceeds of tbe sale of tbe land, for distribution; that at June Term, 1952, Judge Burney entered an order for distribution Of tbe fund, from wbicb order defendant attempted to appeal, but did not perfect tbe appeal; that at March Term, 1953, Judge Stevens entered an order purporting to grant defendant a continuance until June. Term, 1953, to employ counsel and perfect her appeal, wbicb be could not do under rules of practice; and that at June Term, 1953, Judge Stevens, after finding as facts that defendant bad failed to produce bond as per tbe order of Judge Burney, or to employ counsel, or to file a case on appeal as ordered at March Term, 1953, entered an order dismissing tbe appeal of defendant, and ordering tbat tbe funds in custody of tbe Clerk be immediately distributed in accordance witb tbe order of Judge Burney. By wbat authority this order was made does not appear. But it is from this order of Judge Stevens tbat this appeal is attempted.

However, tbe rules of tbe Supreme Court, governing appeals, have not been complied with: (1) Tbe record proper, consisting of summons, pleadings, judgment, and orders, other than tbe Stevens order of June, 1953, are not contained in tbe papers filed in this Court as required by Rule 19 of Rules of Supreme Court — 221 N.C. 553; (2) No appeal bond has been filed, as required by statute G.S. 1-270, G.S. 1-285, nor, in lieu thereof, provision for pauper appeal has been filed as permitted by statute G.S. 1-288; (3) No proper case on appeal has been settled and filed as required by G.S. 1-282 and G.S. 1-283; (4) Tbe record has not been printed, or, in lieu thereof, typewritten copies furnished as required and permitted by Rule 22 of Rules of Supreme Court, 221 N.C. 559; and (5) Brief of defendant, as appellant, has not been printed, or, in lieu thereof, typewritten copies furnished, as required and permitted by tbe rules 27 and 28 of Rules of Supremo Court, 221 N.C. 562.

For defendant, appellant, in propria personam.

For plaintiff, appellee, no counsel.

Per Curiam.

In spite of, and disregarding an utter failure to present a record or case on appeal in compliance witb tbe rules of tbe Court, and practice prescribed by statute in such eases, wbicb merits a dismissal of tbe appeal, this Court has carefully reviewed tbe papers filed, and listened patiently to personal appeal of defendant, in her appearance before tbe Court, tbat she have an actual partition of tbe “Richardson Family Homeplace,” tbe subject of tbe proceeding. And if there were merit in her desire for an actual partition, tbe record fails to show tbat defendant has preserved her right to present tbe question to this Court.

Therefore let tbe appeal be dismissed.

Appeal dismissed.