Opinion
(February Term, 1884.)
Appeal.
1. An appeal must be entered of record in the court below, and the transcript of the record must show the same, in order to give this court jurisdiction.
2. But as it appears that an appeal bond was given, the case is remanded, that the record may be amended to show the appeal was taken, if such be the fact.
SPECIAL PROCEEDING heard at Fall Term, 1883, of IREDELL Superior Court, before Gudger, J.
Mr. D. M. Furches, for plaintiff.
Messrs. E. C. Smith and Fuller Snow, for defendants.
The defendants appealed.
It appears from the record sent to this court, that, at August term, 1883, of the superior court of Iredell county, that court affirmed the judgment of the clerk confirming the sale of the land mentioned in the pleadings. It does not, however, appear that any appeal has been taken from the judgment to this court, or that any notice of appeal was given or waived.
It is therefore manifest that the case is not properly in this court. The appeal is the essential means by which this court gets jurisdiction of an action, and it must certainly appear in the record that it was taken from a proper judgment, authorizing it. It is the appeal that puts this court in relation with the case in the court below, and with that court in respect to the judgment appealed from; and this court must be able to see, from the record, the relation thus established. The court will always be careful to see that it has jurisdiction; this is essential to enable it to take any action whatsoever, and to give any effect to its judgment. Indeed, there can be no judgment without jurisdiction, and there can be no jurisdiction without an appeal or some proceeding, or writ, in substitution therefor. This is so upon principle, but it is, as well, required by the statute. THE CODE, § 550, requires that "within the time prescribed in the preceding section (in reference to appeals) the appellant shall cause his appeal to be entered by the clerk on the judgment docket, and notice thereof to be given to the adverse party." The entry of appeal thus required is indispensable, and, although according to the loose practice that too generally prevails, a mere memorandum that an appeal was taken is all that is entered, strictly and properly it ought to be set out formally in apt words, that the appellant, at the time specified, took an appeal from the judgment in the record; and such entry, however informally expressed, becomes a part of the record to be sent into this court. Section 551 requires that "the clerk, on receiving a copy of the case settled, as required in the preceding section, shall make a copy of the judgment-roll and of the case, and within twenty days transmit the same duly certified to the clerk of the supreme court." The judgment-roll embraces the entry of the appeal taken, and the latter must be sent up as part of it.
The provisions of the statute have not been complied with, and the case is not here for any purpose; but as it appears that an undertaking upon appeal was given, we remand the case, to the end that the record may be so amended as to show that an appeal was taken, if such be the fact.
It is so ordered. Remanded.