Opinion · Supreme Court of North Carolina

State v. . Smith

State v. . Smith, 152 N.C. 842 (N.C. 1910)

Type
Opinion
Court
Supreme Court of North Carolina
Jurisdiction
North Carolina
Date
1910-04-20
Topic
general

Pee CubiaM. The affidavit to appeal in forma pauperis is fatally defective, as it omits the averment that it is made “in good faith,” which is required by Rev., 3278. The appeal must be dismissed on motion as a'matter of right, not of discretion. S. v. Harris, 114 N.

Citator

UpLaw has not yet analyzed State v. . Smith. The absence of a flag is not a finding that it is good law.

Cited by
10 opinions
Pee CubiaM.

The affidavit to appeal in forma pauperis is fatally defective, as it omits the averment that it is made “in good faith,” which is required by Rev., 3278. The appeal must be dismissed on motion as a'matter of right, not of discretion. S. v. Harris, 114 N. C., 830; S. v. Rhodes, 112 N. C., 856; S. v. Jackson, ib., 849; S. v. Shoulders, 111 N. C., 637; S. v. Wylde, 110 N. C., 500; S. v. Tow, 103 N. C., 350; S. v. Moore, 93 N. C., 500; S. v. Payne, ib., 612; S. v. Jones, ib., 617; S. v. Morgan, 77 N. C., 510; S. v. Divine, 69 N. C., 390, cited and approved. S. v. Bramble, 121 N. C., 603; S. v. Atkinson, 141 N. C., 734.

In S. v. Parish, 151 N. C., 659, the Court said: “Unless the requirement of the statute, both as to time and to manner, are complied with, the appeal is not in this Court. The defect is jurisdictional, and we have no power to allow amendment, and the appellee has a right to have the appeal dismissed. S. v. *843 Bramble, 121 N. C., 603; S. v. Gatewood, 125 N. C., 695, and numerous cases there cited.” To same effect S. v. Duncan, 107 N. C., 818; S. v. Payne, 93 N. C., 613.

In S. v. Keebler, 145 N. C., 562, it is said: “In this State an appeal is a right, but not an absolute right. If the appeal bond is not given, or the proper certificate in lieu thereof, the appeal is dismissed.”

Appeal dismissed.