188 S.E.2d 734 | N.C. Ct. App. | 1972
Robert H. PRESSLEY et al.
v.
AMERICAN CASUALTY COMPANY and Lawyers Title Insurance Corporation.
Court of Appeals of North Carolina.
*736 Warren D. Blair and Richard L. Kennedy, Charlotte, for plaintiff appellants.
Kennedy, Covington, Lobdell & Hickman, by Edgar Love, III, Charlotte, for defendant appellee, American Casualty Co.
Certiorari Denied by Supreme Court July 31, 1972.
CAMPBELL, Judge.
On appeal the plaintiffs assign as error the granting of the Motion to dismiss their appeal for failure to serve the case on appeal within the allowed time. They also assign as error the order granting defendant's motion for summary judgment.
Plaintiffs contend that a statement of case on appeal is not required in an appeal from a motion relating solely to the pleadings. They maintain that the record proper constitutes the case to be filed in the appellate court in such a case. It is argued that in the case before us it was not necessary to serve a case on appeal and therefore it was error to dismiss for failure to serve case on appeal within the time allowed.
We agree that, where an appeal is from a judgment on the pleadings, the record proper constitutes the case to be filed in the appellate court, and it is not necessary for the appealing parties to file a statement of case on appeal. Edwards v. Edwards, 261 N.C. 445, 135 S.E.2d 18 (1964). Dismissal for failure to serve case on appeal within the time allowed is not proper in such a case.
The case before us is not one of judgment on the pleadings. In this case summary judgment was rendered on the pleadings and on supporting affidavits. Pleadings themselves constitute a part of the record proper. The general rule is that affidavits being in the nature of evidence are generally not part of the record proper. In order to be considered on appeal, they must be brought into the record by appropriate means. 4A C.J.S. Appeal and Error § 762b. The proper method to bring the affidavits to the attention of the appellate court in this jurisdiction is to incorporate them into the statement of case on appeal.
The case before us involves affidavits which are not part of the record proper, and therefore it could not be appealed by docketing the record proper without a statement of case on appeal. The trial court was correct in dismissing the appeal for failure to serve the case on appeal within the time allowed. Furthermore the case on appeal was filed late in this Court.
We have, nevertheless, reviewed the plaintiffs' other assignments of error and find them to be without merit. There was no factual dispute and the entry of a summary judgment was proper.
Appeal dismissed.
GRAHAM and BRITT, JJ., concur.
