Thompson v. Williams, 175 N.C. 696 (1918)

Feb. 27, 1918 · Supreme Court of North Carolina

175 N.C. 696

MARY O. THOMPSON and Husband v. D. E. WILLIAMS.

(Filed 27 February, 1918.)

1. Appeal and Error — Case—Requisites.

The appellant is required, in stating his case on appeal, to make a concise statement of the entire case necessary to present the assignments of error relied upon, and set out the necessary and pertinent evidence in narrative form, together with the charge of the court necessary to be considered ; and when this is not done the appellee may move before the trial judge to dismiss the appeal.

2. Appeal and Error — Case—Evidence—Narrative Form — Exceptions.

Upon exception, when the appellant has set out the evidence in narrative form, it is the duty of the trial judge to supervise and correct it, where correction is required.

3. Appeal and Error — Case—Certificate of Judge — Motion to Dismiss.

Where the trial judge has certified that the parties have been unable to agree upon the case on appeal, and that the foregoing is the case, it is binding upon the Supreme Court and it will not be dismissed (Rules. 17-21) on the ground that no case on appeal had been stated and settled. Re-visal, sec. 591.

Action, tried before Justice, J., at June Term, 1917, of Pasquotank:, upon these issues:

1. Did the plaintiff and defendant enter into contract, as alleged in the complaint? Answer: “Yes.”

2. Did the defendant wrongfully refuse to comply with his part of the contract? Answer: “No.”

3. Was the plaintiff ready, able and willing to comply with his part of the contract? Answer: “No.”

4. Did plaintiff abandon his contract ? Answer: “Yes.”

5. What damages, if any, is the plaintiff entitled to recover? Answer :■ “None.”

6. What damages, if any, is. the defendant entitled to recover upon his counterclaim? Answer: “None.”

The court rendered judgment dismissing the action, and plaintiffs appealed.

Aydlett & Simpson for plaintiffs.

Ehringhaus & Small for defendant.

Pee Cueiam :

The defendant, appellee, moved to dismiss the appeal under Rules 17 and 21, for that there has been no case on appeal stated and settled by the judge, as required by the statute, Revisa!, sec. 591.

It is contended, and so appears in the record, that there was a case ■on appeal and counter-ease served, and tbat tbe judge undertook, upon request, to settle tbe ease on appeal. Tbe appellee contends tbat tbe •clerk received from tbe judge tbe paper marked “Case on Appeal” attacked to bis affidavit. It appears therein tbat instead of settling tbe •case on appeal tbe judge simply made a few small pen corrections in the notes of charge and referred tbe balance of case to tbe clerk, arbitrarily ordering him to “copy all tbe testimony in case as offered by tbe parties, putting tbe testimony of tbe witnesses in narrative form.”

Tbe defendant further contends tbat “tbe plaintiff’s attorneys, at the request of tbe clerk, took tbe stenographer’s typewritten notes of tbe -evidence and reduced tbe same to narrative form under tbe supervision •of tbe clerk.”

It was tbe duty of plaintiff, appellant, in stating tbe case on appeal 'to make a concise statement of tbe entire case necessary to present tbe ■assignments of error relied upon. In doing so, tbe appellant should ;set out all necessary and pertinent evidence in narrative form, together with tbe charge of tbe court. This is necessary in order to constitute •a concise and proper statement of a case on appeal. For failure to do •so tbe appellee may except and move before tbe judge, when settling tbe case, to dismiss tbe appeal for failure to serve a proper statement. "When tbe evidence is stated in narrative form by tbe counsel for appellant, it is tbe duty of tbe trial judge, if exception is taken to tbe statement, to supervise and correct it.

In tbe record in this case, tbe judge of tbe Superior Court certifies ■over bis own signature as follows: “Parties being unable to agree on case •on áppeal, tbe court settles tbe foregoing as case on appeal. Attorneys waived notice of time and place.” This certificate is binding upon us and we cannot go behind it. From it we must conclude tbat tbe judge ¡supervised tbe settlement of tbe case on appeal and tbat it has received bis approval.

Tbe motion to dismiss must be denied.

Considering tbe appeal upon tbe assignments of error, we find no •substantial error committed which necessitates another trial.

There are no exceptions to tbe evidence. Tbe sixteen exceptions to tbe charge are principally directed to a construction of bis Honor’s •charge and no serious question of law is presented. Tbe charge is set ■out in full and appears to be a clear, fair and full presentation of tbe issues to tbe jury.

No error.