Buie v. Simmons, 90 N.C. 9 (1884)

Feb. 1884 · Supreme Court of North Carolina

90 N.C. 9

JOHN BUIE v. GEORGE D. SIMMONS.

Appeal — Defective Record.

"Where an appeal is taken and the record fails to disclose the grounds upon which the party seeks relief (here against an execution), the court will remand the case, that the record may be perfected.

{Bradley v. Jones, 76 N. C., 204, cited and approved).

MotioN to set aside an execution heard at Spring Term, 1883, of Cumberland Superior Court, before Shipp, J.

The motion was refused and the defendant appealed..

Messrs. N. W. Ray and W. A. Guthrie, for plaintiff.

Messrs. R. S. Huske and J. W. Hinsdale, for defendant.

Merrimon, J.

The record in this case is very imperfect, so much so that we are unable to decide the questions intended to be presented by it, until it shall be perfected.

The names of the persons asking to be Anade parties- as the widow and heirs at law, the grounds and scope of the motion to set aside the execution, which they proposed to make, do not sufficiently appear. The summary statement of the case upon appeal shows that there may have been sufficient grounds for the motion. We are not prepared to say that the appellants are not entitled, in any view of the matter, to make the motion they asked the court to be allowed to make.

In such a case, with a view to the ends of justice, the court will remand the ease, to the end that the record may be perfected. Bradley v. Jones, 76 N. C., 204.

Remanded.