Brown v. Swarn, ___ N.C. App. ___, 810 S.E.2d 237 (2018)

Held: 
Affirmed
  • Facts: Court orally rendered its order on August 2, 2016 and entered the order on August 26, 2016. Appellant filed written notice of appeal on March 13, 2017. Respondent argued the appeal should be dismissed as untimely. The record does not contain a certificate of service of the order on appellant or other evidence of when the appellant received actual notice that the order was entered.
  • Holding: When there is no certificate in the record showing the appellant was served with the judgment, the appellee (and not the appellant) has the burden of showing the appellant received actual notice more than thirty days before filing notice of appeal to warrant a dismissal of the appeal as untimely.
  • Note, there is a line of cases that hold that an appeal is untimely where the evidence in the record shows the appellant received actual notice of the judgment more than thirty days before noticing the appeal.
Category:
Civil Cases with Application to Child Welfare
Stage:
Appeal
Topic:
Calculating Time
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