Standard Amusement Co. v. Tarkington

This case was here at the Fall Term, 1957. Amusement Co. v. Tarkington, 247 N.C. 444, 101 S.E. 2d 398. In the present appeal, plaintiff filed no ’exceptions to defendants’ case on appeal and the case was not settled by the trial jttdge. Plaintiff filed motion in this Court to dismiss the appeal on the ground that the evidence in the case on appeal is not in narrative form. Rule 19 (4), Rules of Practice in the Supreme Court, 221 N.C. 544, 556. All the testimony in the-case on appeal is in question andi answer form. Rule 19(4) is mandatory and failure to comply therewith necessitates a dismissal of the appeal. Laughinghouse v. Insurance Co., 239 N.C. 678, 679, *46280 S.E. 2d 457. When this rule is not complied with this Court will consider only such errors as are presented by the record proper. Hall v. Hall, 235 N.C. 711, 714, 71 S.E. 2d 471. “For the reasons stated in Anderson v. Heating Co., 238 N.C. 138, 76 S.E. 2d 458, the Court has not only found it necessary to adopt Rule 19 (4), but also to enforce it uniformly.” It may not be waived even -by agreement of counsel. Whiteside v. Purina Co., 242 N.C. 591, 592, 89 S.E. 2d 159. Notwithstanding this inflexible rule, we have carefully considered the evidence in the record and we find it insufficient to make out a prima facie case of fraud as alleged in the counterclaim. No error appears upon the record proper.

The appeal is

Dismissed.