{
  "id": 8527749,
  "name": "PRINCIPAL MUTUAL LIFE INSURANCE COMPANY, Plaintiff v. BURNUP & SIMS, INC., Defendant",
  "name_abbreviation": "Principal Mutual Life Insurance v. Burnup & Sims, Inc.",
  "decision_date": "1994-04-19",
  "docket_number": "No. 9326DC157",
  "first_page": "494",
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  "last_updated": "2023-07-14T17:01:59.295429+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Chief Judge ARNOLD and Judge WELLS concur."
    ],
    "parties": [
      "PRINCIPAL MUTUAL LIFE INSURANCE COMPANY, Plaintiff v. BURNUP & SIMS, INC., Defendant"
    ],
    "opinions": [
      {
        "text": "EAGLES, Judge.\nDefendant appeals the district court\u2019s denial of its motion to reinstate its appeal. We affirm.\nDefendant\u2019s appeal from the summary ejectment proceeding was dismissed pursuant to G.S. 7A-228(b) because defendant failed to pay the costs of court to appeal within 20 days after the entry of judgment. G.S. 7A-228(b) provides that, \u201cFailure to pay the costs of court to appeal within 20 days after entry of judgment shall result in the automatic dismissal of the appeal.\u201d (Emphasis added.) The statutory provisions regarding the costs of court to appeal are found in G.S. 7A-305.\nDefendant contends that defendant\u2019s appeal should not have been dismissed under G.S. 7A-228 because defendant\u2019s counsel did not receive a bill of costs from the clerk of superior court. Defendant argues that it is the duty of the clerk of superior court to collect court costs in advance of appeal. Defendant relies on G.S. 7A-305 and this court\u2019s decision in Porter v. Cahill, 1 N.C. App. 579, 162 S.E.2d 128 (1968). We are not persuaded.\nG.S. 7A-305(c) states that \u201cThe 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 . ...\u201d In Cahill, supra, the plaintiff appealed a decision of the magistrate to the district court and did not pay the $11 in advance court costs when he filed the appeal. Plaintiff\u2019s appeal was dismissed by the district court for plaintiff\u2019s failure to pay the advance court costs. This court held that the district court erred in dismissing plaintiff\u2019s appeal and stated:\nUnder the provisions of G.S. \u00a7 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.\nPorter v. Cahill, 1 N.C. App. 579, 581, 162 S.E.2d 128, 130 (1968).\nWe find Cahill distinguishable. The question presented in Cahill was whether the deposit of the $11 in court costs was necessary to perfect the appeal under G.S. 7A-228. Id. at 580, 162 S.E.2d at 130. At that time, G.S. 7A-228 did not require payment of the costs of appeal in order to perfect the appeal. G.S. 7A-228 at that time provided:\nAppeal 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.\nIn Cahill, this court noted that, \u201cIt 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. \u00a7 7A-228.\u201d Cahill v. Porter, 1 N.C. App. 579, 581, 162 S.E.2d 128, 130 (1968). It is clear that our holding in Cahill was based on our interpretation of G.S. 7A-228 as it existed at that time.\nSince Cahill was decided, G.S. 7A-228 has been amended. G.S. 7A-228(b) now provides that:\n(b) The appeal shall be perfected by (1) oral announcement of appeal in open court; or (2) by filing notice of appeal in the office of the clerk of superior court within 10 days after entry of judgment, pursuant to subsection (a) . . . . Failure to pay the costs of court to appeal within 20 days after entry of judgment shall result in the automatic dismissal of the appeal.\nAn appeal is not perfected under G.S. 7A-228(b) unless the costs of court to appeal have been paid within 20 days after the entry of judgment. Failure to pay the costs within 20 days results in the automatic dismissal of the appeal.\nAlthough this court held in Cahill that it is the duty of the clerk of superior court to collect the costs of appeal, that case was decided before the effective date of the amendment to G.S. 7A-228 requiring the payment of the costs of appeal to perfect the appeal. It is the appellant\u2019s responsibility to perfect its appeal. The clerk of superior court has no duty to perfect an appellant\u2019s appeal. Accordingly, we hold that under G.S. 7A-228, plaintiff has the responsibility of ascertaining and paying the costs of appeal.\nDefendant also contends' that the 20 day period in which appellant must pay costs of appeal does not begin to run until after the clerk of superior court has properly assessed the costs of court to appellant. This contention is without merit. The plain language of G.S. 7A-228 requires that costs of appeal be paid \u201cwithin 20 days after entry of judgment.\u201d Accordingly, the 20 day period begins to run the day the judgment is entered.\nFor the reasons stated, we affirm the order of the district court denying defendant\u2019s motion to reinstate its appeal.\nAffirmed.\nChief Judge ARNOLD and Judge WELLS concur.",
        "type": "majority",
        "author": "EAGLES, Judge."
      }
    ],
    "attorneys": [
      "Justice & Eve, P.A., by R. Michael Eve, Jr., for plaintiff-appellee.",
      "Robinson Maready hawing & Comerford, by Jerry M. Smith, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "PRINCIPAL MUTUAL LIFE INSURANCE COMPANY, Plaintiff v. BURNUP & SIMS, INC., Defendant\nNo. 9326DC157\n(Filed 19 April 1994)\nAppeal and Error \u00a7 249 (NCI4th)\u2014 summary ejectment \u2014 appeal to district court \u2014failure to pay costs \u2014dismissal\nThe trial court properly denied defendant\u2019s motion to reinstate its appeal from the magistrate to district court where plaintiff had initiated a summary ejectment action against defendant in magistrate\u2019s court; judgment was entered against defendant; defendant gave notice of appeal to district court; and defendant\u2019s appeal was subsequently dismissed for failure to pay costs of court to appeal within 20 days after entry of judgment. An appeal is not perfected under N.C.G.S. \u00a7 7A-228(b) unless the costs of court to appeal have been paid within 20 days after the entry of judgment; failure to pay the costs within 20 days results in the automatic dismissal of the appeal. Moreover, under N.C.G.S. \u00a7 7A-228, plaintiff has the responsibility of ascertaining and paying the costs of the appeal and the 20 day period begins to run the day the judgment is entered.\nAm Jur 2d, Appeal and Error \u00a7\u00a7 323 et seq.; Justices of the Peace \u00a7\u00a7 112 et seq.\nAppeal by defendant from order signed 4 November 1992 by Judge Brent McKnight in Mecklenburg County District Court. Heard in the Court of Appeals 3 January 1994.\nPlaintiff initiated a summary ejectment action against defendant in magistrate\u2019s court for possession of its premises. On 20 July 1992, judgment was entered against defendant. Defendant gave oral notice of appeal to the district court for a hearing de novo. Defendant gave written notice of appeal on 27 July 1992. On 12 August 1992, defendant\u2019s appeal was dismissed pursuant to G.S. 7A-228(b) for failure to pay costs of court to appeal within 20 days after entry of judgment. Defendant\u2019s motion to reinstate its appeal was denied by the district court. Defendant appeals.\nJustice & Eve, P.A., by R. Michael Eve, Jr., for plaintiff-appellee.\nRobinson Maready hawing & Comerford, by Jerry M. Smith, for defendant-appellant."
  },
  "file_name": "0494-01",
  "first_page_order": 522,
  "last_page_order": 525
}