{ "id": 8553675, "name": "KERRY JO FINLEY v. RONALD S. FINLEY", "name_abbreviation": "Finley v. Finley", "decision_date": "1972-08-23", "docket_number": "No. 7215DC191", "first_page": "681", "last_page": "685", "citations": [ { "type": "official", "cite": "15 N.C. App. 681" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "180 S.E. 2d 445", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "11 N.C. App. 27", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552382 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/11/0027-01" ] }, { "cite": "181 S.E. 2d 124", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "11 N.C. App. 310", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554615 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/11/0310-01" ] }, { "cite": "182 S.E. 2d 219", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "11 N.C. App. 662", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8556419 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/11/0662-01" ] }, { "cite": "185 S.E. 2d 727", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "13 N.C. App. 412", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553808 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/13/0412-01" ] }, { "cite": "187 S.E. 2d 398", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "14 N.C. App. 117", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547102 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/14/0117-01" ] }, { "cite": "167 S.E. 2d 522", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "4 N.C. App. 672", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555493 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc-app/4/0672-01" ] }, { "cite": "178 S.E. 2d 6", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "10 N.C. App. 88", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551045 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc-app/10/0088-01" ] }, { "cite": "180 S.E. 2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "10 N.C. App. 553", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554907 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/10/0553-01" ] }, { "cite": "180 S.E. 2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 384", "category": "reporters:state", "reporter": "N.C.", "year": 1971, "opinion_index": 0 } ], "analysis": { "cardinality": 497, "char_count": 10948, "ocr_confidence": 0.542, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20596934415867488 }, "sha256": "8bc764666934771e1857101a8b9707359ff6681e3a39e897bf6eb9ea09ddc915", "simhash": "1:adab376b1643ba57", "word_count": 1888 }, "last_updated": "2023-07-14T17:26:51.335715+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Mor\u00e9is and Parker concur." ], "parties": [ "KERRY JO FINLEY v. RONALD S. FINLEY" ], "opinions": [ { "text": "MALLARD, Chief Judge.\nAppellant says that \u201c(t)he only question involved in this appeal is whether the trial judge is correct in denying defendant\u2019s motion, by special appearance, that the Judgment dated April 9, 1970 be arrested and declared null and void.\u201d\nRule 19(a) of the Rules of Practice in the Court of Appeals of North Carolina [see Volume 4A, Appendix 1(4), p. 258, of the General Statutes of North Carolina and pp. 31-32 of the 1971 Supplement thereto] requires that the proceedings shall be set forth in the order of the time in which they occurred, and that every pleading, motion, affidavit or other document included in the record on appeal shall plainly show the date on which it was filed and, if verified, the date of the verification and the name of the person who verified it. This rule also requires that every order, judgment, decree and determination show the date on which it was signed and the date on which it was filed.\nIn the record before us the foregoing provisions of the rules were ignored in many respects, among which are: The filing dates are absent or illegible on the original record filed in the Court of Appeals and are therefore not shown on the repro-. duced record of the complaint, the order of publication, the notice of service of process by publication appearing on page 9, the \u201cSupplementary Affidavit for Service by Publication\u201d and the \u201cAffidavit of Publication\u201d on page 10, and the judgment dated 9 April 1970. (Although there is a date appearing after the word \u201cJudgment,\u201d the record does not indicate to what this date pertains; however, from an examination of the original record on file in this office, it appears that this may be the date the judgment was signed and may be the date it was filed, but the record does not show this.) Neither the filing date nor the date of the defendant\u2019s \u201cSpecial Appearance Making Motion to Arrest Judgment\u201d appears, and the filing date on the original filing of this motion is illegible. The judgment dated 4 November 1971 denying defendant\u2019s motion to arrest the judgment herein contains a date after the word judgment, but there is nothing to indicate to what this date pertains. Moreover, the \u201cSupplementary Affidavit for Service by Publication\u201d (on page 10), which appears to have been sworn to by plaintiff\u2019s attorney on 5 January 1971, was placed in the original index and record, as well as in the reproduced record, before an affidavit of one Thomas Boney, Publisher, as to the publication of the notice of service of process by publication. This affidavit shows that it was sworn to on 19 March 1970.\nAppellant says in his brief that both the \u201cSupplementary Affidavit\u201d and the affidavit of publication were \u201cfiled in this case approximately nine months after the Judge signed the judgment of April 9, 1970.\u201d In an addendum to the record, however, there appears to be another \u201cAffidavit of Publication\u201d filed 9 April 1970. The filing date on the original of this \u201cSupplementary Affidavit\u201d filed in this court is almost illegible and there is no filing date on the publisher\u2019s affidavit of publication. With some imagination and interpolation, however, this \u201cSupplementary Affidavit\u201d could be interpreted as bearing a filing date of 5 January 1971, which would have been after the signing date appearing on the judgment dated 9 April 1970. This affidavit appears in the original index and in the original record filed in this court by the appellant before the judgment dated 9 April 1970, which judgment (if we again use some imagination and interpolation) could have been, and probably was, filed on 13 April 1970. If our assumption as to the date of the filing of the judgment is correct, we then could logically proceed further and speculate that the \u201cSupplementary Affidavit for Service by Publication\u201d and the affidavit as to publication were both filed before the judgment, because the rules of this court require that in the record on appeal documents appear in the order of filing and the documents referred to appear before the judgment. In this case, we will not indulge in such speculation. The record before us is incomplete, disorganized, and in an obviously disordered condition and some of these filing dates are material to the question appellant seeks to present.\nIt was the duty of the appellant to cause the record on appeal to be properly made up and transmitted to the Court of Appeals. State v. Cutshall, 278 N.C. 384, 180 S.E. 2d 745 (1971); State v. Harris, 10 N.C. App. 553, 180 S.E. 2d 29 (1971); State v. Thigpen, 10 N.C. App. 88, 178 S.E. 2d 6 (1970); State v. Byrd, 4 N.C. App. 672, 167 S.E. 2d 522 (1969). The appellant has thus failed to comply with the rules of this court, and for failure to comply with the rules, the appeal is subject to be dismissed. See Rule 48 of the Rules of Practice in the Court of Appeals.\nUnder Rule 6 of the General Rules of Practice for the Superior and District Courts Supplemental to the Rules of Civil Procedure adopted Pursuant to G.S. 7A-34, effective July 1, 1970 [see Volume 4A, Appendix 1(5), p. 271, of the General Statutes of North Carolina], it is provided that all motions, written or oral, shall state the rule number or numbers under which the movant is proceeding. It is noted that the defendant, in addition to failing to date his \u201cSpecial Appearance Making Motion to Arrest Judgment,\u201d also failed to comply with this rule requiring him to state the rule number or numbers under which he was proceeding and therefore this motion was insufficient. See Clouse v. Motors, Inc., 14 N.C. App. 117, 187 S.E. 2d 398 (1972); Lehrer v. Manufacturing Co., 13 N.C. App. 412, 185 S.E. 2d 727 (1972); Plumbing Co. v. Supply Co., 11 N.C. App. 662, 182 S.E. 2d 219 (1971); Terrell v. Chevrolet Co., 11 N.C. App. 310, 181 S.E. 2d 124 (1971); and Lee v. Rowland, 11 N.C. App. 27, 180 S.E. 2d 445 (1971).\nWe hold that the \u201cSpecial Appearance Making Motion to Arrest Judgment\u201d was incorrectly made, and that on this record the appellant does not present the question sought to be presented. The trial judge could have properly denied defendant\u2019s motion by \u201cSpecial Appearance\u201d that the judgment dated 9 April 1970 be arrested and declared null and void for failure to comply with Rule 6.\nFor the reasons hereinabove stated, the appeal is dismissed.\nAppeal dismissed.\nJudges Mor\u00e9is and Parker concur.", "type": "majority", "author": "MALLARD, Chief Judge." } ], "attorneys": [ "Dalton & Long by W. R. Dalton, Jr., for plaintiff appellee.", "Wade C. Euliss for defendant appellant." ], "corrections": "", "head_matter": "KERRY JO FINLEY v. RONALD S. FINLEY\nNo. 7215DC191\n(Filed 23 August 1972)\n1. Appeal and Error \u00a7 41\u2014 record on appeal \u2014 filing dates of documents\nAppeal is subject to dismissal where the filing dates of the pertinent pleadings, motions, orders and other documents are not shown in the record on appeal. Court of Appeals Rules 19(a) and 48.\n2. Rules of Civil Procedure \u00a7 7\u2014 motions \u2014 failure to state rule number\nMotion in arrest of judgment should have been denied where the movant failed to state the rule number or numbers under which he was proceeding. Rule 6 of the General Rules of Practice for the Superior and District Courts Supplemental to the Rules of Civil Procedure.\nAppeal by defendant from McL&llcmd, District Judge, 4 November 1971 Session of District Court held in Alamance County.\nPlaintiff in her verified complaint sought to recover of the defendant alimony and support for and custody of the minor child of the parties. Summons was issued herein on 18 December 1969 and was returned unserved on 19 January 1970. Alias and pluries summons were issued on 10 February 1970 and returned on 14 February 1970 with the following \u201cmemo\u201d: \u201cAfter due and diligent search Ronald S. Finley is not to be found in Ala-mance County.\u201d On 25 February 1970 an affidavit of W. R. Dalton, Jr., attorney for the plaintiff, was filed wherein service of process by publication was sought. In this affidavit it was asserted that:\n\u201c1. That the State has general jurisdiction of the subject matter of the action for that the plaintiff has a good cause of action against the defendant in that he owes her alimony, their child support, she is entitled to an order so providing, and is entitled to have such alimony and support a lien against real property of the defendant in this county.\n2. That grounds for personal jurisdiction as provided by G.S. 1-75.4 exist in that the defendant is domiciled in this State and is a resident thereof.\n3. That grounds for in rem or quasi in rem jurisdiction exist as provided by G.S. 1-75.8 in that a subject of the action is real property within this State and the defendant has an interest therein.\n4. That grounds for jurisdiction exist as provided by G.S. 98.1 (sic) in that the court has jurisdiction over real property of the defendant and the defendant has departed from this State or keeps himself concealed therein in order to avoid service of process.\n5. That service of process by publication is authorized by Rules of Civil Procedure, Rule 4 (j) (9) and/or Rule 4(k) in that defendant\u2019s address, post office address, whereabouts, dwelling house, and usual place of abode is unknown and cannot with due and reasonable diligence be ascertained. That the Sheriff has returned process not to be found in Alamance County. That the defendant has admitted by telephone that he is avoiding service of process.\n6. That the defendant, Ronald S. Finley, is no minor.\u201d\nBearing date of 25 February 1970, an order for service of process by publication was entered. A notice of service of process was published for four successive weeks in a newspaper published in Alamance County, and an affidavit to that effect was dated and filed (according to an addendum to the record) on 9 April 1970. The defendant did not appear and did not file answer to the complaint and the cause was calendared for hearing and heard on 9 April 1970. A judgment was entered against the defendant in favor of the plaintiff.\nAn instrument designated \u201cSpecial Appearance Making Motion to Arrest Judgment\u201d appears beginning on page 14 of the reproduced record in this case. This instrument is not dated, and on the original record on appeal filed in this court, it bears an illegible filing date. It reads as follows:\n\u201cCombs Now the Defendant, Ronald S. Finley, and makes a special appearance for the purpose of this motion only, and respectively (sic) shows unto the Court:\nThat on April 9, 1970 His Honor D. Marsh McLelland signed a purported Judgment ordering certain monies paid and certain transfer and orders concerning certain real estate without having proper jurisdiction.\nThat the lack of proper jurisdiction appears upon the face of the record.\nWherefore, the defendant prays the Court that the Judgment in this matter dated April 9, 1970 be arrested and declared null and void.\u201d\nUnder date of 4 November 1971, the trial judge entered an order (no filing date is shown) denying the motion in arrest of judgment, and the defendant appealed to the Court of Appeals, assigning error.\nDalton & Long by W. R. Dalton, Jr., for plaintiff appellee.\nWade C. Euliss for defendant appellant." }, "file_name": "0681-01", "first_page_order": 705, "last_page_order": 709 }