Macon v. Murray, 240 N.C. 116 (1954)

April 7, 1954 · Supreme Court of North Carolina

240 N.C. 116

L. M. MACON v. MISS E. M. MURRAY, SAM MURRAY and JOHN MURRAY.

(Filed 7 April, 1954.)

Appeal and Error § 19—

When the pleadings upon which the case was tried are not in the record, the appeal must be dismissed. Rule of Practice in the Supreme Court No. 19.

Appeal by defendants from Hall, S. J., at October Special Term, 1953, Of RANDOLPH.

Civil action to recover compensation for wort performed by plaintiff for defendants in cutting timber standing on their land, etc., heard in this Court on former appeals reported in 231 N.C. 61, 55 S.E. 2d 807, and 236 N.C. 484, 73 S.E. 2d 165, and heard, thereafter, in Superior Court, on motion of defendants to re-tax costs therein — when and where the judge presiding, “being of the opinion that no sufficient cause had been shown for granting said motion,” ordered that the motion be disallowed. Defendants excepted thereto and appeal to Supreme Court, and assign error.

John L. Murray for defendants, appellants.

No counsel contra.

Pee. Cueiam.

As the pleadings on which the case was tried have been omitted from the record, in violation of the requirements of Rule 19, Section 1 of the Rules of Practice in the Supreme Court, 221 N.C. 544, at page 553, the appeal must be dismissed in accordance with the uniform practice in such cases. See S. v. Lumber Co., 207 N.C. 47, 175 S.E. 713, and cases cited. See also Ins. Co. v. Bullard, 207 N.C. 652, 178 S.E. 113; Goodman v. Goodman, 208 N.C. 416, 181 S.E. 328; Bank v. McCullers, 211 N.C. 327, 190 S.E. 217; Washington County v. Land Co., 222 N.C. 637, 24 S.E. 2d 338; Ericson v. Ericson, 226 N.C. 474, 38 S.E. 2d 517; S. v. Jenkins, 234 N.C. 112, 66 S.E. 819; Smoak v. Newton, 234 N.C. 451, 67 S.E. 2d 462; Allen v. Allen, 235 N.C. 554, 70 S.E. 2d 505. “We can judicially know only what properly appears on the record,” Stacy, C. J., in S. v. Lumber Co., supra.

In the absence of agreement of parties, it is not now deemed expedient to supply the deficiency by reference to records on former appeals.

Appeal dismissed.