Sloan v. Equitable Life Assurance Society, 169 N.C. 257 (1915)

May 12, 1915 · Supreme Court of North Carolina
169 N.C. 257


(Filed 12 May, 1915.)

Appeal and Error — Case on Appeal — Interpretation of Statutes — Motions— Case Stricken Out — Judgments.

A paper-writing purporting to be a case on appeal will be stricken out and tbe judgment below affirmed when not sufficiently made out in compliance with Revisal, sec. 591; and a mere outline of tbe case incorporating instructions to tbe clerk to fill in certain portions of tbe evidence stenograpbieally taken and transcribed, the charge of tbe court, etc., is not a sufficient compliance with tbe statute, it being the duty of tbe appellant to make out bis case and fully perfect it before serving it upon tbe appellee, and no part of tbe duty of tbe clerk to do so.

Appeal by plaintiff from Long, J., at June Term, 1914, of Burxe.

Spainhour & Mull and S. J. Ervin for plaintiff.

Avery & Ervin and W. B. Council for defendant.

Per Curiam.

The defendant moves the Court to strike out the statement of case on appeal and to affirm the judgment upon the face of the record. The motion is allowed. The statement of the case on appeal is in no sense in compliance with the rules of this Court or with tbe provisions of the Eevisal, sec. 591.

Tbe statement served upon tbe appellee purports to be nothing more than a mere skeleton, and may be illustrated by the following extract:

This was a civil action, tried at June Term, 1914, of Burke Superior Court, before his Honor, B. F. Long, judge, and a jury. (The clerk will here copy the first paragraph of the notes of the stenographer as shown by tbe first page of the said notes and the first six (6) lines of second page of the said notes.)

The defendant offered tbe following evidence, viz.;

(The clerk will here copy the evidence offered by the defendant as shown by the stenographer’s notes, including any and all objections and exceptions consecutively, and number tbe same consecutively from one (1) to four (4), inclusive.)

Here tbe defendant closed the evidence, and the plaintiffs also closed.

The court instructed the jury as follows, viz.:

(The clerk will here copy the judge’s charge.)

*258Tbe statute, as well as tbe rules of tbis Court, require a plain and concise statement of tbe case on appeal, and tbat tbe evidence shall be stated in narrative form, so far as possible, and tbe exceptions shall be numbered and tbe assignments of error properly grouped and set up.

It is not tbe duty of tbe clerk of tbe court to make up a case on appeal for tbe appellant, nor to fill up tbe blank spaces. It is tbe duty of tbe appellant to make up bis case and fully perfect it before it is served upon tbe appellee.

Judgment affirmed.