Porter v. Cahill

162 S.E.2d 128 (1968)

1 N.C. App. 579

W. W. PORTER v. Elizabeth CAHILL and William J. Cahill.

No. 68DC56.

Court of Appeals of North Carolina.

July 10, 1968.

*129 Downing, Downing & David, by Edward J. David, Fayetteville, for plaintiff appellant.

Quillan, Russ, Worth & McLeod, by Joe McLeod, Fayetteville, for defendants appellees.

BROCK, Judge.

At or about the time of filing his complaint, the plaintiff paid to the Clerk the sum of $8.00 for advance court costs. This is the total of the $2.00 facilities fee for cases heard before a magistrate, and for $6.00 fee for support of the General Court of Justice as provided by G.S. § 7A-305(a)(1) and (a)(2).

With regard to additional costs where an appeal is taken from a magistrate's judgment to the District Court, G.S. § 7A-305(b) provides:

"On appeal, costs are cumulative, and when cases heard before a magistrate are appealed to the district court, the *130 General Court of Justice fee and the facilities fee applicable in the district court shall be added to the fees assessed before the magistrate; * * *."

It appears therefore that upon plaintiff's appeal from the magistrate to the district court the facility fee of $5.00 and the General Court of Justice fee of $6.00, which are applicable to this case in the district court, should be assessed in addition to the $8.00 already assessed before the magistrate. G.S. § 7A-305(b), supra; G.S. § 7A-305(a)(1) and (a)(2).

The question presented by this appeal is whether a deposit in advance of the additional $11.00 in fees by the plaintiff was mandatory in order to perfect his appeal from the magistrate to the district court.

The plaintiff appellant relies upon G.S. § 7A-228, which reads as follows:

"No new trial before magistrate; appeal for trial de novo; how appeal perfected; oral notice.No new trial is allowed before the magistrate. The sole remedy for a party aggrieved is by appeal for trial de novo before a district judge. Appeal is perfected by serving written notice thereof on all other parties and by filing written notice with the clerk of superior court within 10 days after entry and indexing of the judgment on the civil judgment docket. Notice of appeal may also be given orally in open court upon announcement of or rendition of the judgment, and shall thereupon be noted in writing by the magistrate upon the judgment."

The defendants appellees rely upon G.S. § 7A-305(c), which reads as follows:

"The clerk of superior court, at the time of the filing of the papers initiating the action or the appeal, shall collect as advance court costs, the facilities fee and General Court of Justice fee, except in suits in forma pauperis."

Under the provisions of G.S. § 7A-305(c), supra, it is clear that the duty of collecting the additional costs at the time of the filing of the papers initiating an appeal is imposed upon the Clerk. But a failure of the Clerk to perform his duty in this respect should not operate to prejudice the appealing party.

It is abundantly clear from the record that the plaintiff gave notice of appeal in open court before the magistrate, and that the magistrate duly noted the appeal upon the judgment. This complies with the provisions of G.S. § 7A-228. Notice of appeal having been given and duly noted, it is the duty of the Clerk to place the action upon the civil issue docket of the district court division. G.S. § 7A-229.

If the additional costs have not been paid and the appellee feels aggrieved thereby, the appellee has a remedy. He can ask for execution upon the judgment appealed from and cause a stay bond to be posted or the execution satisfied, G.S. § 7A-227; or he can make a motion before the district judge for a notice to the appellant to pay the additional costs or suffer a dismissal of the appeal.

The judgment of the District Court entered herein on 29 November 1967 dismissing the plaintiff's appeal is reversed, and this cause is remanded to the District Court, Cumberland County, with leave to plaintiff appellant to pay the additional fees within ten days after this opinion is certified to said court; and with leave to the defendants appellees to move the District Court for dismissal of the appeal if the fees are not paid within ten days after this opinion is certified to said court.

Reversed and remanded.

MALLARD, C. J., and PARKER, J., concur.