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Phil Mechanic Construction Co. v. Haywood

Filed: March 16, 1982.

PHIL MECHANIC CONSTRUCTION COMPANY, INC. AND JOHN E. SHACKELFORD, SUBSTITUTE TRUSTEE
v.
CONRAD HAYWOOD AND GENEVA HAYWOOD



Appeal by petitioners from Lamm, Judge. Judgment entered 20 January 1981, in Superior Court, Rutherford County. Heard in the Court of Appeals 9 December 1981.

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

Morris

Petitioners cite authority for the proposition that the court erred in its dismissal of the proceeding for failure to prosecute, because there was no finding that petitioners engaged in delay tactics. They also contend that the court improperly dismissed the action on its own motion, and note that there is no indication

in the order of the Superior Court with respect to whether the case was ever reached for hearing.

We deem it unnecessary to speak to the issues of deliberateness of delay, the source of the motion to dismiss, or whether the matter came to be heard, as petitioners failed to perfect their appeal from the order of the Clerk by giving notice of appeal to the Superior Court within ten days of the entry of the order as required by G.S. 1-272. The court was, therefore, without jurisdiction to review the ruling. Spaulding Division of Questors Corp. v. DuBose, 46 N.C. App. 612, 265 S.E.2d 501, cert. denied, 300 N.C. 375, 267 S.E.2d 678 (1980).

Vacated and remanded for entry of an order of dismissal.

Disposition

Vacated and remanded for entry of an order of dismissal.

19820316

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