Ingram v. Yadkin River Power Co., 181 N.C. 359 (1921)

May 11, 1921 · Supreme Court of North Carolina

181 N.C. 359

W. P. INGRAM et al. v. YADKIN RIVER POWER COMPANY.

(Filed 11 May, 1921.)

1. Appeal and Error — Record—Settlement of Case — Signature of Judge— Agreed Statement.

In order that a case on appeal may be considered, the record should contain a proper statement of the case sought to be determined in the Supreme Court, which is fatally defective unless there is an agreed case properly set out in the record, or where the judge has not signed what purports to be the ease he has settled for the parties.

2. Appeal and Error — Record — Statement of Case — Contention of Counsel.

Matters in dispute between the appellant and the appellee as to admissions or agreements will not be considered by the Supreme Court on appeal, it being required that the case on appeal, properly presented, shall determine all such matters, and not a verbal controversy between counsel.

3. Same — Case Remanded.

Meld, the record not being altogether clear as to certain facts occurring on the trial in this case, it is remanded to the Superior Court for the appellant to request the judge, who presided at the trial, to fix a time and place for the hearing, so that he may find the material facts disputed at the hearing, if such may be desirable or possible.

4. Same — Printing—Supplemental Order.

Where a case on appeal is remanded to the Superior Court judge to make the case more definite or more full as to matters disputed in the Supreme Court, this Court may not require the entire record to be printed again if found to be correct, for in such event a supplemental order may suffice.

Appeal by plaintiffs’ from MoElroy, J., at first September Term, 1920, of RICHMOND.

Civil action to recover damages for alleged ponding of water against and sobbing lands of plaintiffs by reason of defendant’s concrete dam and flash dam at Blewett’s Falls on tbe Pee Dee River. There was a verdict and judgment in favor of the defendant. Plaintiffs appealed.

Stacie, Parleer & Craig and W. B. Jones for plaintiffs.

Bobinson, Caudle & Pruitt, Thomas '& Phillips, F. W. Bynum, James II. Pou, and W. L. Currie for defendant.

Stacy, J.

The record contains no proper statement of case on appeal. The case, as settled by the trial judge, is not signed by him; and there is no agreed statement of the case. This was a matter of procedure to which the appellants should have given proper attention. C. S., 642, 643, and 644; Holloman v. Holloman, 172 N. C., 835; Gaither v. Carpenter, 143 N. C., 241; Stevens v. Smathers, 123 N. C., 499.

Upon the argument it developed that there’is a-difference between Counsel as to what contentions, if any, were abandoned by plaintiffs during the trial in the Superior Court with respect to the alleged damages resulting from the concrete dam. On this point the record is not altogether clear. In Gaither v. Carpenter, supra, it was said: “The case on appeal should contain such incidents of the trial as were duly excepted to. What those incidents were is a matter which, if not agreed upon by counsel, must be settled by the trial judge, and cannot be determined by this Court.” It should also contain a statement of what admissions, if any, were made by the parties during the progress of the trial, if said admissions are deemed to be material.

It is well understood that, except in proper instances, a party to a suit should not be allowed to change his position with respect to a material matter in the course of litigation. Hill v. R. R., 178 N. C., 612; Lindsey v. Mitchell, 174 N. C., 458. Especially .is this so where the change of front is sought to be made between the trial and appellate courts. Webb v. Rosemond, 172 N. C., 848; Coble v. Barringer, 171 N. C., 445. We do not intend to say, or intimate, tbat sucb is tbe case bere. It is one ■of tbe mooted questions wbicb was argued on tbe bearing, and we do not know bow it is. Neither do we mean to suggest tbat tbe point was raised in a proper manner at tbe time tbe case was “settled,” nor even, if established, would be a controlling or material fact in tbe case at bar. ~We only give tbe parties an opportunity to have tbe matter determined if they are in position to do so, and consider it worth while.

Tbe cause will be remanded to tbe end tbat a proper statement of tbe ■case on appeal may be bad, including a finding by tbe judge, if desirable, and a more definite one can be made, touching plaintiffs’ alleged abandonment of claim for damages resulting from tbe concrete dam. Tbe appellants, being tbe moving parties, will request tbe judge to fix a time and place for tbe bearing.

It will not be necessary to have tbe entire statement of case on appeal reprinted if tbe present record is found to be correct. In sucb event a supplemental order will suffice.

Remanded.