Opinion
ORDER
BROCK, Justice.
Defendant's Petition for Discretionary Review is ALLOWED and the cause is remanded to the Court of Appeals with directions to reinstate defendant's appeal to that Court.
In dismissing defendant's appeal Ex mero motu the Court of Appeals cited the provisions of G.S. 1-279 and App.R. 3(c) which provide in substance that notice of appeal must be given within 10 days after Entry Of judgment.
It appears that the Court of Appeals overlooked the definition of Entry of judgment contained in G.S. 1A-1, Rule 58 which provides that Entry of judgment is deemed complete when, Inter alia, the clerk mails notice of its filing to all parties.
The record before the Court of Appeals does not disclose when the clerk mailed to defendant a notice of the filing of judgment. Apparently the appellee concedes that defendant's notice of appeal was timely given because on page 43 of the record on appeal the parties stipulated, Inter alia :
"1. All court papers appearing herein were duly served upon the opposing party so that it is not necessary to include as a part of the record on appeal the certificates of service thereto;
2. The copies of the documents attached hereto fully comprise the record of this proceeding in the Wake County District Court and are all the documents necessary to fully present the questions raised by the appeal."
Also, in its response to defendant's Petition for Discretionary Review filed in this Court the appellee does not suggest that defendant's notice of appeal was not timely given. Plaintiff-appellee states in its response only that "on the record before it, the decision of the Court of Appeals is consistent with prior decisions of this Court." By order of the Court in conference this 12th day of June, 1979.