Opinion
Filed 16 December, 1959.
1. Appeal and Error 34 — Where the evidence is set out in the record in question and answer form and not in narrative form as required by Rule 19 (4), Rules of Practice in the Supreme Court, the appeal will be dismissed in the absence of error appearing on the face of the record proper.
APPEAL by R. O. Tarkington and wife, Mary Marsh Tarkington, hereinafter referred to as "defendants," from Crissman, J., January 19, 1959 term, of GUILFORD (Greensboro Division).
G.C. Hampton, Jr. for plaintiffs, appellees.
T.C. Hoyle, Jr. for additional defendants Max Zager and Max Zager Enterprises, appellees.
Paul R. Ervin for Wayne Theatres, Inc., additional defendant, appellee.
Daniel R. Dixon for R. O. Tarkington and wife, appellants.
This is an action by plaintiff to recover of defendants unpaid rents under a lease of theater properties. Defendants admitted execution of the lease and default in payment of some of the monthly rentals and set up a counterclaim for damages by reason of alleged misrepresentations and fraud inducing defendants to enter into the lease agreement. Defendants admitted that the rent sued for is due and payable. At the close of the evidence the court nonsuited the counterclaim, directed a verdict on plaintiff's cause of action and entered judgment accordingly.
From judgment of involuntary nonsuit on the counterclaim defendants appealed and assigned errors.
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 not settled by the trial judge. 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 and 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, 80 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.