Tilley v. Garrett

Brock:, J.

Although it appears that a hearing conducted pursuant to G.S. 20-25 may be as informal as the particular judge permits, nevertheless there should be sufficient formality in compiling a record of the proceeding so as to permit an appellate review.

The Order of Suspension issued by defendant was not a part of the evidence in this case; there was no stipulation that the two exhibits in evidence are the records upon which the suspension was ordered; and there is no finding by the judge to relate the exhibits to the Order of Suspension. Although we may be reasonably safe in assuming that counsel and the judge were not deliberately engaging in an exercise in futility by considering records which had *558no relation to the Order of Suspension, nevertheless we do not engage in the practice of assuming the existence of evidence. The Record on Appeal in this case was stipulated by counsel and we take it to be complete.

However, for another reason the Order appealed from must be reversed.

G.S. 20-24 requires that the trial courts “. . . shall forward to the Department a record of the conviction of any person . . . .” (Emphasis added.) It does not require that the warrant and judgment, or certified copies thereof, shall be forwarded. G.S. 20-16 authorizes the Department “. . . to suspend the license of any operator or chauffeur with or without preliminary hearing upon a showing by its records . . .” (emphasis added) that the licensee has committed an enumerated offense. It does not require the Department to have in its files a “valid warrant” nor a “valid judgment” before it is authorized to take action.

Therefore, absent a showing by competent evidence, or a stipulation, that defendant’s exhibit 2 was an exact copy of the warrant and judgment on record in Rowan County Court, the finding in the order appealed from that defendant’s exhibit 2 “. . . does not show a valid warrant nor any valid judgment of conviction . . .” is completely immaterial.

If the plaintiff has been improperly deprived of his license by the Department due to a mistake of law or fact, he is entitled to show that the suspension was erroneous; however, he has no ground to complain that the Department does not have as a part of its records a “valid warrant” and a “valid judgment”. Plaintiff has available to him the records of the Court in which he is alleged to have been convicted by which he may show whether the conviction was valid.

The judgment appealed from is

Reversed.

Bkltt and Hedejcic, JJ., concur.