Thurston v. Salisbury Zoning Board of Adjustment , 24 N.C. App. 288 ( 1974 )

MORRIS, Judge.

By motion filed prior to argument, respondents move to dismiss petitioner’s appeal, among other reasons, for failure of petitioner to comply with G.S. 1-282, which provides, in pertinent part:

“The appellant shall cause to be prepared a concise statement of the case, embodying the instructions of the judge as signed by him, if there be an exception thereto, and the request of the counsel of the parties for instructions if there be any exception on account of the granting or withholding thereof, and stating separately, in articles numbered, the errors alleged. A copy of this statemenfshall be served on the respondent within fifteen days from the entry of the appeal taken; ...” (Emphasis supplied,) ,

The statute provides for procedure “after such service”- and for1 extension of time “[i]f it appears that the case1 on appeal cannot be served within the time prescribed above.”

The provisions of G.S. 1-282 are mandatory, not directory. Twiford v. Harrison, 260 N.C. 217, 132 S.E. 2d 321 (1963) ; Wiggins v. Tripp, 253 N.C. 171, 116 S.E. 2d 355 (1960) ; State v. Lewis, 9 N.C. App. 323, 176 S.E. 2d 1 (1970).

Service of the case on appeal by a proper officer, or acceptance of service by appellee or his counsel, has long been a requirement of a valid appeal in this State. State v. Moore, 240 N.C. 792, 84 S.E. 2d 174 (1954) ; State v. Daniels, 231 N.C. 17, 56 S.E. 2d 646 (1949) ; Bell v. Nivens, 225 N.C. 35, 33 S.E. 2d 66 (1945) ; State v. Moore, 210 N.C. 686, 188 S.E. 421 (1936) and cases there cited; Willis v. R. R., 119 N.C. 718, 25 S.E. 790 (1896) ; Woodworking Co. v. Southwick, 119 N.C. 611, 26 S.E. 253 (1896) ; Smith v. Smith, 119 N.C. 311, 25 S.E. 877 (1896) ; McNeill v. R. R., 117 N.C. 642, 23 S.E. 268 (1895) and cases there cited; Forte v. Boone, 114 N.C. 176, 19 S.E. 632 (1894) and eases there cited; Cummings v. Hoffman, 113 N.C. 267, 18 S.E. 170 (1893) and cases there cited; Peebles v. Braswell, 107 N.C. 68, 12 S.E. 44 (1890).

Petitioner concedes that service by a proper officer was not had,-nor did respondent or counsel accept service. He ¡argues that cases cited by respondents were decided “before the enactment of the North Carolina Rules of Civil Procedure- by the General Assembly.” He does not enlighten us as to which of the new rules brought about a change in the service requirement; nor have we been able to find a rule which substantiates petitioner’s position. We are of the opinion that G.S. 1A-1, Ride 5, has no applicability to service of case on appeal as required by G.S. 1-282 and the case law of this State. He further argues that it is a general practice of .attoneys in his county “to serve case on appeal either by mail or by delivering it themselves to the attorneys.” Even if we were so inclined, we can give no weight to this alleged very liberal practice of noncomipliance with the statute prevailing in the county. See Willis v. R. R., supra.

In’the case of Roberts v. Stewart and Newton v. Stewart, 3 N.C. App. 120, 164 S.E. 2d 58 (1968), cert. denied 275 N.C. 137 (1969), this Court said:

“In’ the absence of a case on appeal served withih the timq fixed by the statute, or by valid enlargement', the appellate court will review only the record proper aiid determine whether -errors of law- are disclosed on the face thereof....

uV-We Rave reviewed the record proper. No prejudicial error is disclosed on the face thereof.

Affirmed.

Judges Campbell and Vaughn concur.