{
  "id": 8552611,
  "name": "BALL PHOTO SUPPLY CO., INC. v. [MRS.] B. F. McCLAIN",
  "name_abbreviation": "Ball Photo Supply Co. v. McClain",
  "decision_date": "1976-07-07",
  "docket_number": "No. 7628DC243",
  "first_page": "132",
  "last_page": "133",
  "citations": [
    {
      "type": "official",
      "cite": "30 N.C. App. 132"
    }
  ],
  "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": [],
  "analysis": {
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    "char_count": 2871,
    "ocr_confidence": 0.638,
    "sha256": "2c074943a9adea6d6f09aa372f9d7903eed7f01fb7d26b92a7ff83abaefaf4ba",
    "simhash": "1:9b484ba5500c1dd8",
    "word_count": 496
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  "last_updated": "2023-07-14T18:42:34.327987+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Chief Judge Brock and Judge Parker concur."
    ],
    "parties": [
      "BALL PHOTO SUPPLY CO., INC. v. [MRS.] B. F. McCLAIN"
    ],
    "opinions": [
      {
        "text": "ARNOLD, Judge.\nThe District Court agreed with defendant\u2019s 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\u2019s position that service by mail was proper, and that it was error to dismiss the appeal.\nG.S. 7A-228 provides the manner in which an appeal from a magistrate to the district court is perfected: \u201cAppeal 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.\u201d 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.)\nG.S. 1A-1, Rule 5(b) states that \u201cWith 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.\u201d We hold that this rule applies to the service of notice of appeal from a magistrate to the district court.\nThe order of the District Court dismissing the appeal is\nReversed.\nChief Judge Brock and Judge Parker concur.",
        "type": "majority",
        "author": "ARNOLD, Judge."
      }
    ],
    "attorneys": [
      "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."
    ],
    "corrections": "",
    "head_matter": "BALL PHOTO SUPPLY CO., INC. v. [MRS.] B. F. McCLAIN\nNo. 7628DC243\n(Filed 7 July 1976)\nCourts \u00a7 11.1; Rules of Civil Procedure \u00a7 5 \u2014 appeal from magistrate to district court \u2014 method of serving notice\nNotice 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\u2019s attorney by mail'. G.S. 1A-1, Rule 6(b).\nAppeal by plaintiff from Weaver, Judge. Order entered 2 November 1975 in District Court, Buncombe County. Heard in the Court of Appeals 15 June 1976.\nPlaintiff 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 \u201cthe defendant has been injured by the plaintiff in an amount equal to the amount sued for by the plaintiff in this action,\u201d and the action was dismissed.\nPlaintiff filed notice of appeal to District Court and served the notice upon defendant\u2019s 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.\nLentz and Ball, P.A., by Ervin L. Ball, Jr., for plaintiff appellant.\nMorris, Golding, Blue and Phillips, by James N. Golding, for defendant appellee."
  },
  "file_name": "0132-01",
  "first_page_order": 160,
  "last_page_order": 161
}