§ 7A-228. New trial before magistrate; appeal for trial de novo; how appeal perfected; oral notice; dismissal. - North Carolina Statutes

§ 7A‑228.  Newtrial before magistrate; appeal for trial de novo; how appeal perfected; oralnotice; dismissal.

(a)        The chief district court judge may authorize magistrates tohear 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 theauthority of the chief district court judge in allowing magistrates to hearRule 60(b)(1) motions shall not be construed to limit the authority of thedistrict court to hear motions pursuant to Rule 60(b)(1) through (6) of theRules of Civil Procedure for relief from a judgment or order entered by amagistrate and, if granted, to order a new trial before a magistrate. Afterfinal disposition before the magistrate, the sole remedy for an aggrieved partyis appeal for trial de novo before a district court judge or a jury. Notice ofappeal may be given orally in open court upon announcement or after entry ofjudgment. If not announced in open court, written notice of appeal must befiled in the office of the clerk of superior court within 10 days after entryof 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 thewritten notice of appeal, the appeal shall be noted upon the judgment. If thejudgment was mailed to the parties, then the time computations for appeal ofsuch judgment shall be pursuant to G.S. 1A‑1, Rule 6.

(b)        The appeal shall be perfected by (1) oral announcement ofappeal in open court; or (2) by filing notice of appeal in the office of theclerk of superior court within 10 days after entry of judgment, pursuant tosubsection (a), and by serving a copy of the notice of appeal on all partiespursuant to G.S. 1A‑1, Rule 5. Failure to pay the costs of court toappeal within 20 days after entry of judgment shall result in the automaticdismissal of the appeal. The failure to demand a trial by jury in districtcourt by the appealing party before the time to perfect the appeal has expiredis a waiver of the right thereto.

(b1)      A person desiring to appeal as an indigent shall, within 10days of entry of judgment by the magistrate, file an affidavit that he or sheis unable by reason of poverty to pay the costs of appeal. Within 20 days afterentry of judgment, a superior or district court judge, magistrate, or the clerkof the superior court may authorize a person to appeal to district court as anindigent if the person is unable to pay the costs of appeal. The clerk ofsuperior court shall authorize a person to appeal as an indigent if the personfiles the required affidavit and meets one or more of the criteria listed inG.S. 1‑110. A superior or district court judge, a magistrate, or theclerk of the superior court may authorize a person who does not meet any of thecriteria listed in G.S. 1‑110 to appeal as an indigent if the personcannot pay the costs of appeal.

The district court may dismiss an appeal and require the person filingthe appeal to pay the court costs advanced if the allegations contained in theaffidavit are determined to be untrue or if the court is satisfied that theaction is frivolous or malicious. If the court dismisses the appeal, the courtshall affirm the judgment of the magistrate.

(c)        Whenever such appeal is docketed and is regularly set fortrial, and the appellant fails to appear and prosecute his appeal, thepresiding judge may have the appellant called and the appeal dismissed; and insuch case the judgment of the magistrate shall be affirmed. (1965, c. 310, s. 1; 1969, c. 1190, s. 22; 1979, 2ndSess., c. 1328, s. 3; 1981, c. 599, s. 3; 1985, c. 753, ss. 1, 2; 1987, c. 553;1993, c. 435, s. 2; 1998‑120, s. 1.)