237 N.C. 761 | N.C. | 1953
This appeal should have been docketed in this Court on or before 10 :00 a.m. Tuesday, 7 April, 1953, and appellant’s brief filed by noon 14 April, 1953, according to the order allowing the petition for writ of certiorari. Rules 5 and 28 of the Rules of Practice in the Supreme Court, 233 N.C. 749 and 750, et seq. Pruitt v. Wood, 199 N.C. 788, 156 S.E. 126; S. v. Harrell, 226 N.C. 743, 40 S.E. 2d 205.
“We have held in a number of cases that the Rules of this Court, governing appeals, are mandatory and not directory . . . The Court has not only found it necessary to adopt them, but equally necessary to enforce them and to enforce them uniformly.” (Citing authority.) S. v. Moore, 210 N.C. 459, 187 S.E. 586. It is said in S. v. Presnell, 226 N.C. 160, 36 S.E. 2d 927, these rules have been uniformly enforced since the decision in S. v. Farmer, 188 N.C. 243, 124 S.E. 562.
While the agreed statement of the case on appeal was filed in this Court too late, yet it was filed a few minutes before the Attorney-General moved to affirm the judgment of the lower court. However, the appellant’s brief, which should have been filed by noon 14 April, 1953, was filed in this Court on 20 April, 1953. The Attorney-General makes a motion to dismiss the appeal and to affirm the judgment below for failure of the defendant appellant to file his brief on time, pursuant to Rule 28 of the Rules of Practice in the Supreme Court. Conceding that the Attorney-General made his motion too late to affirm the court below for failure of the defendant appellant to file the agreed statement of the case on appeal in time, Mitchell v. Melton, 178 N.C. 87, 100 S.E. 124; McIntosh N. C. Prac. and Proc., Sec. 688, yet the filing by the defendant appellant of his brief too late works an abandonment of the assignments of errors, except those appearing on the face of the record, which are cognizable ex mero motu. S. v. Robinson, 214 N.C. 365, 199 S.E. 270.
“The defendants made a motion to dismiss plaintiffs’ appeal That under Rule 28 of Practice in the Supreme Court, plaintiff appellants were required to file their brief by noon 13 February, 1937, and they failed to do so until 19 February 1937.’ The plaintiffs’ appeal is dismissed under the rule.” Wolfe v. Galloway, 211 N.C. 361, at p. 365, 190 S.E. 213. See also In re Bailey, 180 N.C. 30, 103 S.E. 896; Phillips v. Junior Order, 175 N.C. 133, 95 S.E. 91.
No error appears on the face of the record, and the sentences passed against the defendant on each count were within the limits authorized by law. The judgments entered below are
Affirmed and appeal dismissed.
