Carroll v. Barden, 97 N.C. 191 (1887)

Feb. 1887 · Supreme Court of North Carolina

97 N.C. 191

JAMES L. CARROLL and wife v. JOHN BARDEN.

Appeal.

Where neither the record nor the case on appeal shows any exception or assignment of error, the judgment will be affirmed.

{Phipps v. Pierce, 94 N. 0.. 514; Lytle v. Lytle, Ibid., 523; Pleasants v. The Railroad, 95 N. C., 195; cited and approved).

Civil action, heard on appeal from a justice of the peace, by Clark, Judge, at Fall Term, 1886, of Sampson Superior Court.

There was a judgment for the defendant and the plaintiffs appealed.

No counsel for the plaintiffs.

Messrs. H. E. Faison, A. W. Haywood and Kerr, for the defendant.

MERRIMOS, J.

We have carefully examined the record of this appeal, and fail to find either in it, or the case settled upon appeal, any exception as assignment of error. There is nothing appearing, that in terms or by the remotest implication indicates the slightest dissatisfaction with the judgment appealed from, except simply that the appeal was-taken to this Court. It is settled by a multitude of decisions, that in such case the judgment must be affirmed.

The presumption is that the judgment is not erroneous. The party who alleges the contrary must show it, not by oral suggestion on the argument, but he must assign it in the record in such reasonable way as that this Court can see it. This is essential. The statute prescribes how this shall be done. Philips v. Pierce, 94 N. C., 514; Lytle v. Lytle, Ibid., 522; Pleasants v. Railroad, 95 N. C., 195. See also Clark’s Code, p., where many earlier cases are collected. Judgment affirmed.

No error. Affirmed.