Griffin v. Barnes

87 S.E.2d 560 (1955)

242 N.C. 306

Wilson GRIFFIN and Nell Johnson Griffin, co-partners, trading as Wilson Griffin Decorators, v. J. C. BARNES and wife, Henrietta J. Barnes.

No. 674.

Supreme Court of North Carolina.

May 25, 1955.

*561 J. A. McLeod, Max E. McLeod, Dunn, for defendants-appellants.

Nance & Barrington, Fayetteville, for plaintiffs-appellees.

WINBORNE, Justice.

It is noted at the threshold of this appeal that while in the record filed in this Court reference is made to a complaint in this purported action, no pleadings are contained therein. "The pleadings are a necessary part of the record proper upon appeal, and where the pleadings are omitted from the record, the appeal must be dismissed",headnote epitomizing this holding in State v. Ravensford Lbr. Co., 207 N.C. 47, 175 S.E. 713. Such is the uniform practice in this Court. See also Rule 19, Section 1 of Rules of Practice in the Supreme Court, 221 N.C. 544, at page 553, and Ericson v. Ericson, 226 N.C. 474, 38 S.E.2d 517, and cases cited. Judicial knowledge arises only from what properly appears on the record. Goodman v. Goodman, 208 N.C. 416, 181 S.E. 328; Macon v. Murray, 240 N.C. 116, 81 S.E.2d 126.

And while it may be doubted whether any valid exceptive assignment of error has been made to appear, it is not amiss to say: The contents of a summons is specified in G.S. § 1-89. "[It] must run in the name of the State * * * and be directed to the sheriff or other proper officers of the county or counties in which the defendants or any of them reside or may be found." And in the main the duties of the office of sheriff are prescribed by statute, Commissioners v. Stedman, 141 N.C. 448, 54 S.E. 269, and are ministerial in character, and, as to such ministerial duties, it is implied when not so provided by statute, that he may act by a substitute or deputy. Yeargin v. Siler, 83 N.C. 348; Jamesville & W. R. Co. v. Fisher, 109 N.C. 1, 13 S.E. 698, 13 L.R.A. 721; Borders v. Cline, 212 N.C. 472, 193 S.E. 826. The findings of fact appear to be accordant with this principle.

Appeal Dismissed.