Thrush v. Thrush

Annotate this Case

94 S.E.2d 897 (1956)

245 N.C. 63

Anna B. THRUSH v. W. E. THRUSH, Individually, and W. E. Thrush, Trading and Doing Business as Thrush Enterprises, and H. B. Meiselman and wife, Claire Meiselman, and F. B. Graham, Trustee.

No. 165.

Supreme Court of North Carolina.

November 21, 1956.

*898 J. H. Ferguson, Wilmington, for defendant W. E. Thrush, appellant.

Marsden Bellamy, George Rountree, Jr., Wilmington, for defendant intervenors, appellants.

Elkins & Calder, by Robert E. Calder, Wilmington, for plaintiff, appellee.

HIGGINS, Justice.

Rule No. 19 of the Rules of Practice in the Supreme Court provides that pleadings, issues and judgment shall be a part of the transcript in all cases. Rule 20 provides that memoranda of pleadings will not be received or recognized in the Supreme Court as pleadings, even by consent of counsel. The record in this case does not contain the complaint. The trial judge took its contents into account in his findings of fact. Exceptions were duly taken both to the court's findings and to its refusal to make requested findings. On review here, therefore, this Court, in the absence of the complaint, cannot have before it all `the evidence upon which the court based its findings. The absence of the complaint from the record makes it necessary to dismiss the appeal. This procedure has been uniform since Allen v. Hammond, 122 N.C. 754, 30 S.E. 16. The decisions of this Court following the Hammond case are collected and analyzed in Pruitt v. Wood, 199 N.C. 788, 156 S.E. 126; and since that decision the rule has been observed in Gardner v. Moose, 200 N.C. 88, 156 S.E. 243; Lipe v. Stanly County, 200 N.C. 92, 156 S.E. 243; Riggan v. Harrison, 203 N.C. 191, 165 S.E. 358; Armstrong v. Home Service Stores, 203 N.C. 231, 165 S.E. 680; Parks v. Seagraves, 203 N.C. 647, 166 S.E. 747; Payne v. Brown, 205 N.C. 785, 172 S.E. 348; State v. Ravensford Lumber Co., 207 N.C. 47, 175 S.E. 713; Goodman v. Goodman, 208 N.C. 416, 181 S.E. 328; Abernethy v. First Security Trust Co., 211 N.C. 450, 190 S.E. *899 735; Washington County v. Norfolk Southern Land Co., 222 N.C. 637, 24 S.E.2d 338; Ericson v. Ericson, 226 N.C. 474, 38 S.E.2d 517; Campbell v. Campbell, 226 N.C. 653, 39 S.E.2d 812; Macon v. Murray, 240 N.C. 116, 81 S.E.2d 126; Griffin v. Barnes, 242 N.C. 306, 87 S.E.2d 560.

The foregoing citation of authority is intended to emphasize the uniform holding that compliance with the rule is mandatory.

In dismissing the appeal this Court does not affirm the order entered by Judge Moore on April 14, 1956, but leaves it as if no appeal had been taken. Whether the findings of fact and conclusions of law are supported by the evidence, and whether that order modifies, changes or overrules Judge Frizzelle's prior order, are questions not decided on this appeal.

Appeal dismissed.

JOHNSON, J., not sitting.