Rice v. Guthrie, 114 N.C. 589 (1894)

Feb. 1894 · Supreme Court of North Carolina
114 N.C. 589
N. H. RICE v. W. H. GUTHRIE

N. H. RICE v. W. H. GUTHRIE.

Record on Appeal — Dismissal.

1. Where a motion was made to set aside a decree of sale and, adversely, a motion to confirm the report of sale and for final judgment was made, the latter was allowed and the former continued, hut no appeal was taken from the final decree, the Judge at the next term properly held it to he unnecessary to consider the motion to set aside the former decree.

2. 'Where the record in this Court consists only of the case on appeal, without the summons or pleadings, and no excuse is offered for the defective record, nor application for a certiorari, nor that the case he remanded, the appeal will he dismissed.

MotioN in the cause to set aside judgment, etc., in Mam-«on Superior Court, heard before Armfield, J., at Chambers in Asheville, August 16, 1892.

The facts appear in the opinion of Associate Justice ■Clark.

Mr. J. 21. Gudger, for defendant.

No counsel contra.

Clark, J. :

In this cause an interlocutory order of sale was made at Fall Term, 1891. At Fall Term, 1892, the report of sale came in. A motion to set aside the decree of ■sale was made and a motion to confirm the report and for *590final judgment. The Court confirmed the report and rendered final judgment, hut continued the motion to set aside the former decree. This was anomalous. But as there was no appeal from the final decree it was properly held by the Judge at the next term that .it would be a vain thing to consider the motion to set aside the first judgment. AVe say this much, treating the statement of the case as a record, but in fact there is no record proper before us. There is nothing before us except the case on appeal. There is neither summons nor pleadings. Though a defective transcript, especially when there is no laches, will be helped out by a certiorari, or the case may be remanded (Clark’s Code, 2d Ed., p. 575), yet in a case like this, where the case on appeal was the sole transcript, the appeal was dismissed. Sweden v. Harris, 107 N. C., 311. Besides, in the present case no excuse is offered for the defective record, nor application for certiorari, nor that the case be remanded.

Appeal Dismissed.