Bill Text: NC H781 | 2011-2012 | Regular Session | Amended
Bill Title: Summary Ejectment/Appeals
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2011-04-07 - Ref To Com On Commerce and Job Development [H781 Detail]
Download: North_Carolina-2011-H781-Amended.html
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2011
H 1
HOUSE BILL 781
|
Short Title: Summary Ejectment/Appeals. |
(Public) |
|
|
Sponsors: |
Representative LaRoque (Primary Sponsor). For a complete list of Sponsors, see Bill Information on the NCGA Web Site. |
|
|
Referred to: |
Commerce and Job Development. |
|
April 7, 2011
A BILL TO BE ENTITLED
AN ACT requiring that notice of appeal from a magistrate's judgment in a summary ejectment proceeding be given within five days after entry of judgment.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 7A‑228 reads as rewritten:
"§ 7A‑228. New trial before magistrate; appeal for trial de novo; how appeal perfected; oral notice; dismissal.
(a) The chief district court judge may authorize
magistrates to hear motions to set aside an order or judgment pursuant to G.S. 1A‑1,
Rule 60(b)(1) and order a new trial before a magistrate. The exercise of the
authority of the chief district court judge in allowing magistrates to hear
Rule 60(b)(1) motions shall not be construed to limit the authority of the
district court to hear motions pursuant to Rule 60(b)(1) through (6) of the
Rules of Civil Procedure for relief from a judgment or order entered by a
magistrate and, if granted, to order a new trial before a magistrate. After
final disposition before the magistrate, the sole remedy for an aggrieved party
is appeal for trial de novo before a district court judge or a jury. Notice of
appeal may be given orally in open court upon announcement or after entry of
judgment. If not announced in open court, written notice of appeal must be filed
in the office of the clerk of superior court within 10 days after entry of judgment.judgment,
except that in a summary ejectment proceeding under Article 3 of Chapter 42 of
the General Statutes written notice of appeal must be filed in the office
of the clerk of superior court within five days after entry of judgment. The
appeal must be perfected in the manner set out in subsection (b). Upon
announcement of the appeal in open court or upon receipt of the written notice
of appeal, the appeal shall be noted upon the judgment. If the judgment was
mailed to the parties, then the time computations for appeal of such judgment
shall be pursuant to G.S. 1A‑1, Rule 6.
(b) The appeal shall be perfected by (1) oral
announcement of appeal in open court; or (2) by filing notice of appeal in the
office of the clerk of superior court within five days after entry of
judgment in a summary ejectment proceeding and within 10 days after entry
of judgment,judgment in all other proceedings, pursuant to
subsection (a), and by serving a copy of the notice of appeal on all parties
pursuant to G.S. 1A‑1, Rule 5. Failure to pay the costs of court to
appeal within 10 days after entry of judgment in a summary ejectment
proceeding and within 20 days after entry of judgment in all other
proceedings shall result in the automatic dismissal of the appeal. The
failure to demand a trial by jury in district court by the appealing party
before the time to perfect the appeal has expired is a waiver of the right
thereto.
(b1) A person desiring to appeal as an indigent shall,
within five days of entry of judgment by the magistrate in a summary
ejectment proceeding and 10 days of entry of judgment by the magistrate,magistrate
in all other proceedings, file an affidavit that he or she is unable by reason
of poverty to pay the costs of appeal. Within 10 days after entry of
judgment in a summary ejectment proceeding and within 20 days after entry
of judgment,judgment in all other proceedings, a superior or
district court judge, magistrate, or the clerk of the superior court may
authorize a person to appeal to district court as an indigent if the person is
unable to pay the costs of appeal. The clerk of superior court shall authorize
a person to appeal as an indigent if the person files the required affidavit
and meets one or more of the criteria listed in G.S. 1‑110. A
superior or district court judge, a magistrate, or the clerk of the superior
court may authorize a person who does not meet any of the criteria listed in G.S. 1‑110
to appeal as an indigent if the person cannot pay the costs of appeal.
The district court may dismiss an appeal and require the person filing the appeal to pay the court costs advanced if the allegations contained in the affidavit are determined to be untrue or if the court is satisfied that the action is frivolous or malicious. If the court dismisses the appeal, the court shall affirm the judgment of the magistrate.
(c) Whenever such appeal is docketed and is regularly set for trial, and the appellant fails to appear and prosecute his appeal, the presiding judge may have the appellant called and the appeal dismissed; and in such case the judgment of the magistrate shall be affirmed."
SECTION 2. This act becomes effective October 1, 2011, and applies to appeals filed on or after that date.
