246 N.C. 452 | N.C. | 1957
The clerk of the Superior Court certified that the “case on appeal,” appearing in the purported transcript filed in this Court, was served on the Commissioner, and that the Commissioner did not file exceptions thereto or serve a countercase. The clerk’s said certificate made no reference to documents purporting to constitute the record proper; nor did the purported transcript contain any stipulation with reference thereto. In the purported transcript, the name of Mrs. Mozella J. Jones appeared in the caption of the cause; and in the said “case on appeal” it appeared that she testified at the hearing. Neither the purported transcript, nor the “case on appeal,” contained other indication that Mrs. Mozella J. Jones had been made a party defendant.
In this Court, Mrs. Mozella J. Jones moved to dismiss the appeal on the ground that she was a party defendant but had not been served with petitioners’ statement of case on appeal. Answering said motion, petitioners (appellants) do not contend that the “case on appeal” was served on her; rather, they take the position that Mrs. Mozella J. Jones was not a proper party.
At our request, the said clerk has certified to this Court a copy of his order of 20 March, 1956, entered with consent of petitioners’ counsel, which made Mrs. Mozella J. Jones a party defendant herein, and also a copy of the answer filed by Mrs. Mozella J. Jones pursuant to said consent order.
Whether Mrs. Mozella J. Jones is a proper party is not presented. Suffice to say, by consent order, she was made a party and filed answer; and petitioners were not at liberty to ignore these facts. Indeed, it appears now that she, represented by her counsel, (not the Commissioner) , appeared at the hearing and opposed the granting of the petition.
Appeal dismissed.
