Plaintiffs contend Judge Clark erred in refusing to entertain their motion to have defendant’s counsel of record appear and answer questions as to what information he had as to the whereabouts of his client pending the appeal of the interlocutory order awarding custody of the children to the plaintiffs.
The general rule as to jurisdiction of the trial court after notice of appeal has been given and appeal entries filed has been explicitly stated by our Supreme Court. In Wiggins v. Bunch, 280 N.C. 106, 108, 184 S.E. 2d 879, 880 (1971), we find:
“For many years it has been recognized that as a general rule an appeal takes the case out of the jurisdiction of the trial court. In Machine Co. v. Dixon, 260 N.C. 732, 133 S.E. 2d 659, it was stated:
*682‘As a general rule, an appeal takes a case out of the jurisdiction of the trial court. Thereafter, pending the appeal, the judge is functus officio. “ . . . (A) motion in the cause can only be entertained by the court where the cause is.” Exceptions to the general rule are: (1) notwithstanding notice of appeal a cause remains in fieri during the term in which the judgment was rendered, (2) the trial judge, after notice and on proper showing, may adjudge the appeal has been abandoned, (3) the settlement of the case on appeal ....’”
See Sink v. Easter filed in the Court of Appeals on 16 October 1974.
None of the exceptions to the general rule has any application in this case. There being no allegation or showing on the part of the plaintiffs that the defendant had abandoned her appeal, Judge Clark necessarily had to determine from the record presented to him whether an appeal was pending. The record before him showed on its face that the defendant in open court had given notice of appeal from Judge Harris’ interlocutory order dated 22 May 1974. The trial court can neither allow nor refuse an appeal. Harrell v. Harrell, 253 N.C. 758, 117 S.E. 2d 728 (1961) ; Veazey v. Durham, 231 N.C. 357, 57 S.E. 2d 377 (1950) ; Development Co. v. Phillips, 3 N.C. App. 295, 164 S.E. 2d 516 (1968). Thus, Judge Harris’ order dated 25 May 1974 attempting to expunge the notice of appeal was a nullity, and the defendant and Judge Clark were justified in disregarding it.
Plaintiffs’ contention that no appeal was taken from the order of 22 May 1974 was belied by the record presented to Judge Clark and the record docketed in this court in this proceeding. Furthermore, we take judicial notice of the fact that defendant’s appeal from the order of 22 May 1974 was docketed in this court on 23 August 1974. Whether that appeal is premature is a matter to be determined, by this court. Under the circumstances of this case, we find no reversible error in Judge Clark’s refusal to entertain the plaintiffs’ motion. See Joyner v. Joyner, 256 N.C. 588, 124 S.E. 2d 724 (1962) ; Collins v. Collins, 18 N.C. App. 45, 196 S.E. 2d 282 (1973).
Affirmed.
Judges Britt and Baley concur.