Hoke's Ex'rs v. Carter's Adm'rs, 34 N.C. 327, 12 Ired. 327 (1851)

Aug. 1851 · Supreme Court of North Carolina

34 N.C. 327, 12 Ired. 327

J. F. HOKE’S Ex’rs vs. JAMES CARTER’S Adm'rs.

A party cannot appeal, when the judgment ia in hia fayor, juat as he wanted it.

It is only when both parties except to the judgment as erroneous, that both have a ground for appeal.

Aopeal from the Superior Court of Law of Burke county, Spring Term, 1851, his Honor Judge Settle presiding.

This is the same case, which has been decided at this term, upon the appeal of the plaintiffs, and is brought up here upon the appeal of the defendants, with a view of presenting an exception, because of the rejection of Fleming, who was offered by the defendants, for the purpose of proving, that the sale and delivery of the bond had certain conditions annexed thereto.

Avery and Bynum for the plaintiffs.

iV. W. W'oodfm and Gaither for the defendants.

Pearson, J.

We cannot entertain the appeal. The defendants do not except to the judgment. It is just what they asked for — they are not “ dissatisfied therewith.” How can they appeal ?

It is only when both parties except to the judgment, as erroneous, that both have a ground tor appeal, as in the case of Devereux v Burgwin. The defendant excepted, because of error in not giving judgment in his favor; and the defendant excepted, because of error, in that he was not allowed interest upon the $1,000, for which he had judgment.

The appeal must be dismissed, arid the defendants will-pay the costs of appeal.

Per. Curiam. Judgment accordingly.