#### BALL PHOTO SUPPLY CO., INC. v. [MRS.] B. F. McCLAIN

No. 7628DC243

(Filed 7 July 1976)

Courts § 11.1; Rules of Civil Procedure § 5 — appeal from magistrate to district court — method of serving notice

Notice of appeal from a magistrate to the district court need not be served by a judicial officer or be accepted by the appellee, but is sufficient if served upon appellee’s attorney by mail'. G.S. 1A-1, Rule 6(b).

Appeal by plaintiff from Weaver, Judge. Order entered 2 November 1975 in District Court, Buncombe County. Heard in the Court of Appeals 15 June 1976.

Plaintiff instituted this action in Small Claims Court to recover $96.43 on an account. Defendant answered and denied the debt and asserted a counterclaim against the plaintiff for $452.84. After hearing the evidence the magistrate found that “the defendant has been injured by the plaintiff in an amount equal to the amount sued for by the plaintiff in this action,” and the action was dismissed.

Plaintiff filed notice of appeal to District Court and served the notice upon defendant’s attorney by mail. Defendant filed a Motion to Dismiss the appeal in the District Court on the basis that service was improper. The District Court dismissed the appeal, and plaintiff appealed to this Court.

*133 Lentz and Ball, P.A., by Ervin L. Ball, Jr., for plaintiff appellant.

Morris, Golding, Blue and Phillips, by James N. Golding, for defendant appellee.

ARNOLD, Judge.

The District Court agreed with defendant’s position that it was necessary for notice of appeal from a magistrate to the district court to be served by a judicial officer or accepted by the appellee. We agree with plaintiff’s position that service by mail was proper, and that it was error to dismiss the appeal.

G.S. 7A-228 provides the manner in which an appeal from a magistrate to the district court is perfected: “Appeal 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 rendition of judgment.” Defendant relies upon G.S. 1-282 and cases cited thereunder holding that service must be by an officer unless accepted by the appellee. G.S. 1-282 was replaced by the new Rules of Appellate Procedure which do not apply to appeals from a magistrate to district court for trial de novo under G.S. 7A-228 et seq. (See Commentary to App. Rule 1.)

G.S. 1A-1, Rule 5(b) states that “With respect to such other pleadings and papers service upon the attorney or upon a party may also be made by delivering a copy to him or by mailing it to him at his last known address or, if no address is known, by filing it with the clerk of court.” We hold that this rule applies to the service of notice of appeal from a magistrate to the district court.

The order of the District Court dismissing the appeal is

Reversed.

Chief Judge Brock and Judge Parker concur.