{
  "id": 8359279,
  "name": "L. HARVEY AND SON COMPANY t/a SEVEN SPRINGS SUPPLY CO. v. JUANITA SHIVAR",
  "name_abbreviation": "L. Harvey & Son Co. v. Shivar",
  "decision_date": "1987-01-06",
  "docket_number": "No. 868SC450",
  "first_page": "673",
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      "year": 1982,
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    {
      "cite": "306 N.C. 394",
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  "analysis": {
    "cardinality": 245,
    "char_count": 3581,
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  "last_updated": "2023-07-14T16:07:52.921422+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Chief Judge Hedrick and Judge Cozort concur."
    ],
    "parties": [
      "L. HARVEY AND SON COMPANY t/a SEVEN SPRINGS SUPPLY CO. v. JUANITA SHIVAR"
    ],
    "opinions": [
      {
        "text": "MARTIN, Judge.\nOne of defendant\u2019s contentions on appeal is that the order appealed from is invalid because it was entered after the expiration of the session of court at which the motion was heard. However, the record on appeal, as originally filed in this Court, was insufficient to enable us to resolve the issue. Therefore, pursuant to App. R. 9(b)(5), we ordered that the minutes of the 18 November 1985 civil session of the Superior Court of Wayne County be sent up and made a part of the record on appeal in this case. The minutes reflect that the trial judge rendered his decision in open court on 20 November 1985 and directed that plaintiffs counsel prepare the written order. The clerk made a notation of such action in the minutes of the court. Such a notation constitutes entry of judgment for the purposes of determining when notice of appeal must be given. G.S. 1A-1, Rule 58; In re Moore, 306 N.C. 394, 293 S.E. 2d 127 (1982), appeal dismissed, 459 U.S. 1139, 74 L.Ed. 2d 987, 103 S.Ct. 776 (1983).\nThere is no indication in the record that defendant gave oral notice of appeal at the time the order was entered. She filed and served her written notice of appeal on 9 December 1985, 19 days after \u201centry\u201d of the order. G.S. 1-279(c) and App. R. 3(c) require that appeal from a judgment or order must be taken within ten days after its entry. \u201cFailure to give timely notice of appeal in compliance with G.S. 1-279 and Rule 3 of the North Carolina Rules of Appellate Procedure is jurisdictional, and an untimely attempt to appeal must be dismissed.\u201d Booth v. Utica Mutual Ins. Co., 308 N.C. 187, 189, 301 S.E. 2d 98, 99-100 (1983). Therefore, we are without jurisdiction to consider the merits of defendant\u2019s appeal and must order that the appeal be dismissed.\nAppeal dismissed.\nChief Judge Hedrick and Judge Cozort concur.",
        "type": "majority",
        "author": "MARTIN, Judge."
      }
    ],
    "attorneys": [
      "Cecil P. Merritt for plaintiff appellee.",
      "R. Michael Bruce for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "L. HARVEY AND SON COMPANY t/a SEVEN SPRINGS SUPPLY CO. v. JUANITA SHIVAR\nNo. 868SC450\n(Filed 6 January 1987)\nAppeal and Error \u00a7 14\u2014 clerk\u2019s notation in minutes o\u00ed court \u2014 entry of judgment-notice of appeal not timely\nDefendant\u2019s appeal from an order denying her relief from a judgment on a note was not timely where the trial judge rendered his decision in open court on 20 November 1985 and directed plaintiffs counsel to prepare the written order; the clerk made a notation of such action in the minutes of the court; there was no indication in the record that defendant gave oral notice of appeal at the time the order was entered; and defendant filed and served her written notice of appeal on 9 December 1985, 19 days after entry of the order. N.C.G.S. \u00a7 1A-1, Rule 58, N.C.G.S. \u00a7 1279(c), N. C. Rules of App. Procedure, Rule 3(c).\nAPPEAL by defendant from Brown, Frank R., Judge. Judgment entered 20 November 1985 in Wayne County Superior Court. Heard in the Court of Appeals 10 November 1986.\nPlaintiff brought this action to recover monies due under the terms of a promissory note. Defendant answered, admitting that she had executed the note. Plaintiff moved for summary judgment, and on 29 April 1985 the motion was allowed and judgment was entered against defendant in the sum of $20,000.00 plus interest, costs and $1,500.00 attorney\u2019s fees. Defendant did not appeal.\nOn 28 August 1985, defendant moved, pursuant to G.S. 1A-1, Rule 60(b), for relief from the judgment. The motion was heard at the 18 November 1985 civil session of the Superior Court of Wayne County. From an order denying her motion for relief from the judgment, defendant appeals.\nCecil P. Merritt for plaintiff appellee.\nR. Michael Bruce for defendant appellant."
  },
  "file_name": "0673-01",
  "first_page_order": 701,
  "last_page_order": 703
}