Royals v. Baggett

262 N.C. 541 | N.C. | 1964

PeR Cueiam.

On September 8, 1964, appellees filed in this Court a motion to dismiss the appeal for failure to comply with our Rule 19. Rules of Practice in the Supreme Court, 254 N.C. 783, 795. Prior thereto, a record and a brief for appellants had been prepared and filed in this Court by E. R. Temple, Esquire, who had served as counsel for appellants from the commencement of this action.

On September 21, 1964, Mr. Temple filed a motion in this Court for an order “confirming the termination of employment of E. R. Temple in this cause,” in which he set forth an agreement with appellants that his employment terminate and that he withdraw as counsel. Simultaneously, J. R. Barefoot, Esquire, filed in this Court, as attorney for appellants, a statement to the effect Mr. Temple’s employment by appellants had been terminated by mutual consent; that Mr. Temple had withdrawn as counsel for appellants, subject to the approval of this Court; and that he (Mr. Barefoot) had been offered and accepted employment by appellants. In this statement, and also in an answer filed by Mr. Barefoot as attorney for appellants, it was asserted that appel-lees’ motion to dismiss the appeal should be denied and that the Court in its discretion should allow appellants an opportunity to correct deficiencies, if any, in the record.

On September 23, 1963, pending decisions on said motions, Mr. Barefoot was permitted to present and did present an oral argument to this Court relating to the asserted merits of appellants’ appeal.

Under the circumstances, Mr. Temple's motion for leave to withdraw as counsel for appellants is allowed.

With reference to appellees’ motion to dismiss: While appellants have failed to comply with the requirements of our Rule 19 in certain respects, we have deemed it appropriate under existing circumstances to consider the questions presented by the assignments of error and appeal.

After a protracted trial, the jury resolved all issues of fact against plaintiffs-appellants; and appellants have failed to show error of such nature as to justify the award of a new trial. “Technical error is not sufficient to disturb the verdict and judgment. The burden is on the appellant not only to show error, but to show prejudicial error amounting to the denial of some substantial right; or to phrase it differently, to show that if the error had not occurred, there is a reasonable probability the trial might have been materially more favorable to him.” In re Will of Thompson, 248 N.C. 588, 598, 104 S.E. 2d 280, and cases cited.

Having elected to treat the appeal as properly before us, the judgment entered by Judge Bundy is affirmed.

Affirmed.