Carter v. Bryant

• Decision Date: 12 November 1930
• Docket Number: 407.
• Parties: CARTER et ux. v. BRYANT.
• Court: North Carolina Supreme Court

155 S.E. 602

199 N.C. 704

CARTER et ux. v. BRYANT.

No. 407.

Supreme Court of North Carolina

November 12, 1930

Appeal from Superior Court, Davidson County; McElroy, Judge.

Action by G. E. Carter and wife for specific performance of written contract to purchase land, lumber plant, etc., to recover damages for alleged breach of said contract, and to recover value of certain lumber sold and delivered to the defendant. Defendant denied liability and set up counterclaim for alleged breach of contract on the part of plaintiffs. From a judgment of nonsuit on the first and second causes of action and order continuing the third cause and defendant's counterclaim for future determination, plaintiffs appeal.

Affirmed.

Brittain & Brittain, of Asheboro, and Phillips & Bower, of Lexington for appellants.

Bryan & Campbell, of Wilmington, and H. R. Kyser, of Thomasville, for appellee.

STACY C.J.

From the judgment and order entered at the February term, 1930 Davidson superior court, the plaintiffs gave notice of appeal to the Supreme Court, and were allowed forty-five days to make out and serve statement of case on appeal, with thirty days thereafter given to the defendant to prepare and file exceptions or counter case.

The plaintiffs' statement of case, consisting of 29 typewritten pages, throughout which appear at least 45 notations, "Clerk will here copy deed," or ""Clerk will here copy plaintiffs' exhibit No. --," etc., was served on defendant's counsel April 2, 1930. No deeds or exhibits, which the clerk was directed to copy and insert therein, accompanied this statement. Deeming said statement, as made out and served, insufficient to show error on the part of the trial court, counsel for defendant notified the clerk of the superior court of Davidson county, May 22, 1930, that no exceptions or counter case would be filed, and that the plaintiffs' statement of case on appeal, exactly as made out and served, without alteration, amendment, or insertion of deeds and exhibits, would therefore become the statement of case on appeal by operation of law. State v. Price, 110 N.C. 599, 15 S.E. 116.

Thereafter, the deeds and exhibits referred to in plaintiffs' statement of case on appeal, as made out and served, were copied by some one and presented to the clerk for incorporation into said statement. The clerk did not insert these deeds and exhibits in the statement of case on appeal, but certifies that the "first 47 sheets contain the case on appeal *** and the succeeding 73 sheets contain true and correct copies of the exhibits referred to by notations in said case on appeal."

On October...