Mason v. Moore County Board of Commissioners

BaiíNiiill, J.

The defendants have not perfected the appeal the record shows they noted in the court below. Indeed, they are not the parties aggrieved. The cause is brought here by plaintiffs. But the record fails to disclose the jurisdictional facts necessary to vest us with authority to entertain the appeal.

That the entries of appeal are not those the parties intended to make would seem to be apparent. To guard against the possibility there may have been an error in transcribing the record, the Clerk of this Court communicated with the Clerk of the Superior Court of Moore County for the purpose of having him check the record here against the original. He, in response, filed in this Court the original judgment together with the accompanying appeal entries from which it appears that the record below is as certified.

Thus it does not appear of record that plaintiffs excepted to the judgment entered, or appealed therefrom, or gave any notice of appeal. This *628 is a fatal defect, jurisdictional in nature, which precludes us from considering the appeal on its merits.

A party seeking the review of a judgment of the Superior Court must first appeal therefrom, G.S. 1-279, and must cause his appeal to be entered on the judgment docket “and notice thereof to be given to the adverse party unless the record shows an appeal taken and prayed at the trial . . .” G.S. 1-280. These entries and the subsequent docketing of the record on appeal here is what vests this Court with jurisdiction and “puts it in efficient relation and connection with the court below . . .”

Walton v. McKesson, 101 N. C. 428 . Without them, this Court has no jurisdiction and is without authority to consider the questions attempted to be presented. Instead, the purported appeal must be dismissed.

Moore v. Vanderburg, 90 N. C. 10 ;

Spence v. Tapscott, 92 N. C. 576 ;

McCoy v. Lassiter, 94 N. C. 131 ;

Brooks v. Austin, 94 N. C. 222 ;

Manufacturing Co. v. Simmons, 97 N. C. 89 ;

Walton v. McKesson, supra; Howell v. Jones, 109 N. C. 102 ;

R. R. v. Brunswick County, 198 N. C. 549 , 152 S. E. 627 .

“There are no entries, however, showing any exception by defendant, or any notice of appeal to the plaintiff, either in open court or within the time prescribed by statute. C.S. 641, C.S. 642. The appeal docketed in this Court by the defendant must therefore be dismissed.

Corp. Comm. v. R. R., 185 N. C. 435 , 117 S. E. 563 ;

Howell v. Jones, 109 N. C. 102 , 13 S. E. 889 . The record filed in this Court must show at least that an appeal was taken from the judgment. Otherwise this Court acquires no jurisdiction of the action. Const. of N. C., Art. IV, sec. 8.”

R. R. v. Brunswick County, supra.

“It is not sufficient that the appellant intended to appeal, as perhaps he did, but it must appear of record that he did in fact appeal. This is essential to make the appeal effective and put this Court in relation with the Superior Court.”

Manufacturing Co. v. Simmons, supra.

Since the absence of any appeal entry by plaintiffs was called to the attention of the Clerk of the Superior Court of Moore County, counsel have filed in this Court a stipulation that plaintiffs did appeal, and they now consent, in so far as they are authorized so to do, that the record shall be amended to so show. This is not sufficient to remedy the jurisdictional defect in the record.

Even if we are vested with authority in proper instances to correct the records of the Superior Court, we could enter no valid order to that end until we had first acquired jurisdiction. Nor may counsel correct the record proper by stipulation. The remedy is by motion in the cause in the Superior Court.

Land Bank v. Cherry, 227 N. C. 105 , 40 S. E. (2) 799, and cases cited;

Ragan v. Ragan, 212 N. C. 753 , 194 S. E. 458 , and cases cited.

*629 This Court is bound by tbe record as certified by tbe Clerk of tbe Superior Court. If it fails to disclose tbe necessary jurisdictional facts we bave no authority to do more than dismiss tbe appeal.

S. v. Robinson, post, 647.

We may note that the plaintiffs suffer no substantial barm by reason of this disposition of tbe attempted appeal. The proceeding in respect to tbe authorization of the bonds, the calling of tbe election, and the bolding thereof were in all respects regular and fully complied with tbe statutory requirements. Tbe judge below so found and tbe record supports tbe findings.

When the proposed bonds are for a necessary expense and the question whether they shall be issued is submitted to the electors of tbe governmental unit as required by N. C. Const., Art. V, sec. 4, the vote is not against the registration. The favorable vote of a majority of those voting in tbe election is sufficient to validate the bond resolution and authorize the issuance and sale of the proposed bonds. “. . . the proposed indebtedness must be approved by a majority of those who shall vote thereon.” N. C. Const., Art. V, sec. 4; G.S. 153-92;

Hallyburton v. Board of Education, 213 N. C. 9 , 195 S. E. 21 ;

Gill v. Charlotte, 213 N. C. 160 , 195 S. E. 368 ;

Sessions v. Columbus County, 214 N. C. 634 , 200 S. E. 418 ;

Twining v. Wilmington, 214 N. C. 655 , 200 S. E. 416 ;

Coe v. Surry County, 226 N. C. 125 , 36 S. E. (2) 910.

Appeal dismissed.