Waters v. Waters, 199 N.C. 667 (1930)

Nov. 5, 1930 · Supreme Court of North Carolina
199 N.C. 667
ARTHUR M. WATERS v. LEVIN WATERS

ARTHUR M. WATERS v. LEVIN WATERS.

(Filed 5 November, 1930.)

1. Trial F a — Submission of one issue will not be held for error where appellant has had opportunity to present all contentions to jury.

The submission by the trial court to the jury of only one issue will not be held for error where the appellant has been afforded ample opportunity to present all his contentions, both as to law and fact, thereunder.

*6682. Appeal and Error E a — The pleadings are necessary part of record proper and where they do not appear therein the appeal will be dismissed.

The rules of practice in the Supreme Court require among other things that the pleadings, issues and judgment shall be a part of the record proper, and this appeal, the record not including the summons or complaint, and the Court, consequently not being informed as to the nature of the action, is dismissed.

Appeal by defendant from Nuwn, J., at May Term, 1930, of Beaufort.

Civil action presumably for debt, tried upon the following issue: “In what amount, if any, is defendant indebted to plaintiff ? Answer: $125.00 with interest.”

Judgment on the verdict, from which the defendant appeals, assigning as error the refusal of the court to submit other issues.

The record contains the following recital: “The judge in his charge to the jury gave the contentions of both plaintiff and defendant, and charged the law arising upon same.”

MacLean & Rodman for plaintiff.

A. W. Bailey and L. M. Scott for defendant.

Stact, C. J.

It appearing that each party was granted full and ample opportunity to present his contentions, both as to the law and the facts, no error can be imputed to the trial court in submitting the matter to the jury on a single issue. Potato Co. v. Jeanette, 174 N. C., 236, 93 S. E., 795.

Furthermore, it is provided by Rule 19, sec. 1, of the Rules of Practice in the Supreme Court that “the pleadings on which the case is tried, the issues and the judgment appealed from shall be a part of the transcript in all cases.” 192 N. C., p. 847. No summons or complaint appears in the record, hence we are not properly informed as to the nature of the action. The appeal, therefore, will be dismissed for failure to send up the necessary parts of the record proper. Platt v. Const. Co., 198 N. C., 782.

Appeal dismissed.