11 S.E. 330 (N.C. 1890), Boyer v. Teague

Citation:11 S.E. 330, 106 N.C. 571
Opinion Judge:MERRIMON, C.J.
Party Name:BOYER v. TEAGUE.
Attorney:Watson & Buxton and Glenn & Glenn, for petitioner. L. M. Scott and W. S. Ball, for respondent.
Case Date:April 21, 1890
Court:Supreme Court of North Carolina
 
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Page 330

11 S.E. 330 (N.C. 1890)

106 N.C. 571

BOYER

v.

TEAGUE.

Supreme Court of North Carolina

April 21, 1890

Petition for certiorari. Watson & Buxton and Glenn & Glenn, for petitioner.

L. M. Scott and W. S. Ball, for respondent.

MERRIMON, C.J.

After this case was argued at the present term, but before the court considered of it in conference, the plaintiff (appellee) suggested, upon affidavit, that the case settled on appeal failed to set forth certain evidence produced on the trial in the court below, tending to show that certain persons (specified by name) who voted at the election in question for the appellant were not entitled to vote, and that such evidence should have been so set forth, in order to a fair understanding of the exception referred to; and that the judge who presided at the trial, and settled the case, can and is willing to send up the evidence. The judge referred to states in a writing signed by him, and filed with the motion herein, that if the evidence referred to above was not set forth in the case settled by him, as he thought and believed it was, the omission to so set it forth in the proper connection was an inadvertence on his part, and he says: "I can, with the aid of my memoranda, certify and send up the whole or any portion of the evidence bearing upon the illegality of said votes, and will willingly do so, if directed by the court; or, if the whole evidence in the cause is needed, can send that." Thereupon the plaintiff moved that the writ of certiorari be issued, in this case, directed to and commanding the clerk of the superior court to certify to this court a more perfect transcript of the case settled on appeal, when and as soon as the judge who settled the same shall correct that now on file in his office in this action, and that the said judge be notified that he may have opportunity to make such correction of the case settled as ought to be made. The defendant opposed such motion and produced and filed sundry affidavits tending to prove that no such evidence as that so suggested by the plaintiff was produced on the trial. He further insisted that this court had not authority to allow such motion; that at all events it should not; that it came too late after argument; and that the judge had no authority to correct the case as settled.

The case stated on appeal by the parties to the action, or settled by the judge from...

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