McAlister v. McAlister

187 S.E.2d 449 (1972)

14 N.C. App. 159

Janet Lynn Taylor McALISTER v. Thomas Ray McALISTER.

No. 7219DC103.

Court of Appeals of North Carolina.

March 29, 1972.

Certiorari Denied May 24, 1972.

No counsel for plaintiff appellee.

Ottway Burton, Asheboro, for defendant appellant.

Certiorari Denied by Supreme Court May 24, 1972.

*450 CAMPBELL, Judge.

The only issue raised in this Court is whether it was error for the trial judge to deny defendant's motion to have the record taken by an official court reporter.

The defendant argues that it was error to deny his motion for a reporter and that the absence of a reporter impaired his right of appeal.

The North Carolina General Statutes require only that "[c]ourt-reporting personnel shall be utilized, if available, for the reporting of civil trials in the district court." G.S. § 7A-198 (emphasis added). If a reporter is not available in any county, other means may be employed to take the testimony. Ibid. The defendant made no motion that any other means be employed when his motion for a court reporter was denied.

There are no cases on this point in North Carolina. Other jurisdictions have, however, held that it is not error for the trial judge to fail to appoint a stenographer to take down the testimony where no stenographer is available. Lindsey v. Caston, 118 S.W.2d 843, Tex.Civ.App. (1938); Universal Life Ins. Co. v. Larremore, 32 S.W.2d 964, Tex.Civ.App. (1930). If the case is one in which a court reporter's services can be dispensed with without prejudice, and no reporter can be found, it is not error to refuse a motion for the services of a reporter. 53 Am.Jur.2d, Trial, § 30; Frost v. Witter, 132 Cal. 421, 64 P. 705 (1901).

A hearing of this nature may be conducted on affidavits only and without oral testimony. Miller v. Miller, 270 N.C. 140, 153 S.E.2d 854 (1967). Nevertheless, oral testimony was introduced in the instant case. Even so the absence of stenographic notes is not always fatal. State v. Sanders, 280 N.C. 67, 185 S.E.2d 137 (1971); State v. Allen, 4 N.C.App. 612, 167 S.E.2d 505 (1969).

The defendant has not shown any prejudice by the denial of his motion. A new trial will be granted only for prejudicial error. 1 Strong, N.C. Index 2d, Appeal and Error, § 47.

In the trial of this case we find

No error.

BRITT and GRAHAM, JJ., concur.