Sorrells v. Decker, 212 N.C. 251 (1937)

Oct. 13, 1937 · Supreme Court of North Carolina

212 N.C. 251

MRS. N. L. SORRELLS, LINNIE SORRELLS, Individually and as Administratrix of J. N. SORRELLS; MRS. L. G. STACY, and W. W. SORRELLS, v. MISS JOYCE DECKER, Administratrix of J. E. DECKER, Deceased.

(Filed 13 October, 1937.)

Trial § S3—

Inadvertence in tbe statement of tbe contentions of tbe parties and tbe evidence supporting them must be brought to tbe court’s attention in apt time to afford opportunity for correction.

Winborne, J., took no part in tbe consideration or decision of this case.

Appeal by defendant from Alley, J., at July Term, 1937, of McDowell. No error.

Action by plaintiffs to enjoin mortgage sale of land upon tbe ground that tbe debt bad been paid and tbe mortgage canceled, and also to recover tbe sum of $347.78 alleged overpayment on tbe note, made by mistake;

There was verdict for plaintiffs establishing tbe fact that tbe note bad ■been paid, tbe mortgage canceled, and that tbe amount claimed bad been overpaid by mistake.

From judgment on tbe verdict, defendant appealed.

No counsel for plaintiffs, appellees.

Morgan & Story for defendant, appellant.

Pee Cueiam.

Tbe only exceptions noted at tbe trial and brought forward in tbe assignments of error relate to tbe judge’s charge to tbe jury. Tbe portions excepted to contained statements of tbe contentions of tbe parties and tbe evidence supporting. If there were any inadvertence on tbe part of tbe judge in these recitals, bis attention should have been called to it at tbe time so that correction, if deemed important, might have been made. S. v. Sinodis, 189 N. C., 565; S. v. Barnhill, 186 N. C., 446. Tbe controversy presented issues of fact which have been resolved against tbe defendant.

, In tbe trial, we find

No error.

WiNBOENE, J., took no part in tbe consideration or decision of this case.