Queen v. Snowbird Valley Railroad, 161 N.C. 217 (1912)

Dec. 14, 1912 · Supreme Court of North Carolina

161 N.C. 217

MARY QUEEN, Administratrix, v. SNOWBIRD VALLEY RAILROAD COMPANY.

(Filed 14 December, 1912.)

1. Appeal and Error — Appeal from Judgment — Assignment of Error —Motions.

An appeal from tlie judgment rendered is of itself an assignment of error, and the case on appeal will not on motion be dismissed on the ground that no error was therein assigned by appellant.

2. Appeal and Error — in Forma Pauperis — Leave to Appeal — Practice.

To appeal as a pauper, the statutory leave must be obtained, and the mere leave to sue as a. pauper is not sufficient.

3. Appeal and Error — Case—Settlement by Judge — Practice.

It is necessary that thlS trial judge settle the case on appeal when the parties do not agree.

Appeal from Webb, J., at Special Term, 1912, of Graham.

J. N. Moody, A. D. Baby, for plaintiff.

Dillard & Hill, M. W. Bell, Mor phew & Phillips for defendr ant.

Per Curiam.

This is an appeal from a nonsuit. The defendant’s motion to dismiss because there is no assignment of error cannot be allowed, because the appeal from the judgment is of itself an assignment of error. Wilson v. Lumber Co., 131 N. C., 163, and cases there cited; Mershon v. Morris, 148 N. C., 51.

But there is no case on appeal settled by the judge or by counsel. The evidence in the shape of question and answer is dumped into the record, and there is nothing to show that it is correct. Besides, while there is leave to sue as a pauper, there is no leave to appeal as a pauper, no appeal bond, and no printed record nor any printed brief on behalf of the plaintiff.

Appeal dismissed.