Owens v. Paxton, 106 N.C. 480 (1890)

Feb. 1890 · Supreme Court of North Carolina

106 N.C. 480

JESSE OWENS v. A. F. PAXTON.

Certiorari — New Trial — Appeal—Lost Papers.

When it appeared from the return of a Judge to a certiorari that the answer had been lost, and his notes of the trial also, and that, in consequence, he was unable to make up or settle the case upon appeal, and there was no laches on the part of the appellant, a new trial will be granted.

This was a MOTION for a new trial, heard upon the return of the Judge to a certiorari. The case was tried at Spring Term, 1888, of TbaNSYLVANIA Superior Court, before Mac-Rae, J.

No counsel for plaintiff.

Messrs. T. F. Davidson and G. A. Shuford, for defendants.

Clare, J.:

To the certiorari in this case the Judge returns that the amended answer has been lost, and his notes of the trial also, and that, in consequence, he is unable to make up or settle case on appeal. The appellant moves thereupon for a new trial. The loss of the amended answer of itself would not support this motion, as it might be supplied by proper proceedings. Nichols v. Banning, 91 N. C., 4. Nor would the mere fact of the Judge’s inability to settle the case of itself be sufficient. Simmons v. Andrews, at this term. But it appears in addition, in this case, that there has been no laches on the part of the appellant.

Under such circumstances a new trial must be ordered. Burton v. Green, 94 N. C., 215; Commissioners v. Steamship Co., 98 N. C., 165.

New trial.