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Smith v. Smith

Filed: October 16, 1979.

SYBIL MCGINNIS SMITH
v.
HAROLD WAYNE SMITH



Appeal by defendant from Alexander (Elreta M.), Judge. Order entered 30 August 1978 dismissing defendant's appeal from order of 11 August 1978 entered in District Court, Guilford County. Heard in the Court of Appeals 17 September 1979.

Parker, Judge. Chief Judge Morris and Judge Martin (Robert M.) concur.

Parker

Defendant assigns error to the conclusion of the trial court that he failed to comply with the provisions of Rule 3 and Rule 26 of the Rules of Appellate Procedure. Under App. R. 3 and G.S. 1-279, appeal from a judgment or order in a civil action must be taken within ten days from its entry. The requirement of timely filing and service of notice of appeal is jurisdictional, and unless the requirements of both G.S. 1-279 and the Rules of Appellate Procedure are met, the appeal must be dismissed. Giannitrapani v. Duke University, 30 N.C. App. 667, 228 S.E.2d 46 (1976). Rule 3(a) of the Rules of Appellate Procedure provides in pertinent part:

Any party entitled by law to appeal from a judgment or order of a superior or district court rendered in a civil action or special proceeding during a session of court may take appeal by . . .

(2) filing notice of appeal with the clerk of superior court and serving copies thereof upon all other parties within [ten days after the entry of the judgment or order].

App. R. 26 prescribes the proper procedure for service of the notice of appeal:

(b) Service of All Papers Required. Copies of all papers filed by any party and not required by these rules to be served by the clerk shall, at or before the time of filing, be served on all other parties to the appeal. (emphasis added).

(c) Manner of Service. . . Service may also be made upon a party or his attorney of record by delivering a copy to either or by mailing it to either at his last known address . . . . Service by mail is complete upon deposit of the paper enclosed in a postpaid, properly addressed wrapper in a Post Office or official depository under the exclusive care and custody of the United States Post Office Department.

In its findings of fact, the trial court found that notice of appeal was filed in the Office of the Clerk of Superior Court of Guilford County on 21 August 1978 at 3:58 p.m. and that defendant's attorney placed a properly addressed envelope containing the Notice of Appeal and Certificate of Service in an official depository under the exclusive care and custody of the U.S. Post Office department at some time after 6:00 p.m. on 21 August 1978. Based on this finding of fact, the trial court concluded that defendant had failed to comply with the provisions of App. R. 3 and App. R. 26 because service of notice of appeal on plaintiff's counsel was not made "at or before the time of filing" of the Notice of Appeal within the meaning of those words as they appear in App. R. 26(b). We hold that this conclusion was erroneous. Service upon plaintiff's counsel on 21 August was complete upon deposit in the mail. Although App. R. 26(b) requires that copies of papers be served upon the opposing party at or before the time of filing, the phrase "at or before" must be given a logical construction. If the word "at" is strictly construed to mean "simultaneously with," it is mere surplusage in the context of App. R. 26, since service of papers simultaneously with filing of notice with the clerk of the court would, under all normal circumstances, be physically impossible. A more reasonable construction of the word "at," as that word appears in the phrase "at or before the time of filing" in App. R. 26(b), and one which permits the word to attain some significance rather than to be merely surplusage, would be to construe it to mean "on the same day as." The same result obtains if attention is focused on the word "time" in the phrase "time of filing" as that phrase appears in App. R. 26(b). Throughout the N.C. Rules of Appellate Procedure wherever time periods are specified for the doing of some act, the time is stated in terms of days, never in fractions of days. We see no compelling reason, either in the language or purpose of App. R. 26(b), why that Rule should be interpreted to require, contrary to all other Rules, that

a fraction of a day be considered. A more reasonable construction of the Rule, and one which makes it consistent with the other Rules of Appellate Procedure, is to interpret Rule 26(b) as requiring that the papers referred to therein be served on all other parties to the appeal on the day of or before the day of filing. We adopt that construction. So construing the rule, we hold that service of the notice of appeal in the ...


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