McCrimmen v. Parish, 116 N.C. 614 (1895)

Feb. 1895 · Supreme Court of North Carolina

116 N.C. 614

JOHN McCRIMMEN v. JOHN B. PARISH.

Practice — Appeal—Affirmance of Judgment.

An appellant must show error affirmatively, and where he does not do so and the record is insufficient to determine whether or not error was committed by the trial Judge, the judgment below will be affirmed.

Action to recover land, commenced by summons issued on 1st April, 1892, and tried before Bryan, J., and a jury, at Marcli Term, 1894, of Moohe Superior Court. There was judgment on a verdict for defendant, and plaintiff appealed.

Messrs. Blade & Adams, for plaintiff ( appellant).

Messrs. Douglass dc Shaw, for defendant.

Fubohes, J.:

This is an action for possession of land, and there is but one exception presented by the record for oar consideration. The Judge, among other things, charged the jury as requested by counsel for defendant, as follow's: “ Every grant and deed must have a beginning corner, and if the jury should find the beginning corner of the McAuley 50 acres to be at M, then they must find the beginning corner of the John C. Buie 100 acres to be at 0 ; and if they find the beginning corner of the 100 acre tract, then the beginning corner of the 23 acre John C. Buie grant is at the point “Q,” and the plaintiff cannot recover, and you must ansiver the first issue, ‘No.’ Plaintiff excepted and, upon denial of motion for new trial, appealed.”

It appears from the case on appeal that the plaintiff offered in evidence two grants from the State of North Carolina to John O. Buie, and a deed from Buie to the plaintiff. And the defendant offered in evidence two grants from tiie State to Murdoch McAuley, and a deed from Margaret Ann Moore to defendant. And the case states that “ a copy of said grants is hereto attached.” But upon examination of the record, we find no such copies. And we suppose from the statement of the case that there had been a survey of the land mentioned in said grants as each grant seems to be located by lettets, A, B, and C. But there is no map or plot of such survey attached, or furnished the Court. Therefore, it is impossible for the Court to see whether His Honor’s charge was erroneous or not. And, as it devolves upon the appellant to show that there was error, and as he has failed to do so, it only remains for us to affirm the judgment.

Affirmed.

Burches, J.:

Since filing the opinion in this case, copies of the grant to Buie and of the deed from Buie to plain- ■ tiff and also a plot of the survey have been filed — no copies being furnished of the grants to Murdoch McAuley. And we have examined the copies and the plot with as much care as we could, thinking we might find sufficient statements to enable us to give an opinion more satisfactory to ourselves than was the opinion heretofore filed. But we find it to be a complicated question of location, and the plot is without explanation. So we are compelled to leave the cáse as our original opinion left it, by saying, if there is error the appellant has failed to show it to this Court.

N o Error.