Cressler v. City of Asheville

• Decision Date: 23 May 1905
• Citation: 51 S.E. 53,138 N.C. 482
• Parties: CRESSLER et al. v. CITY OF ASHEVILLE.
• Court: North Carolina Supreme Court

51 S.E. 53

138 N.C. 482

CRESSLER et al. v. CITY OF ASHEVILLE.

Supreme Court of North Carolina

May 23, 1905

Appeal from Superior Court, Buncombe County; Justice, Judge.

Action by Jane H. Cressler and others against the city of Asheville. From a judgment for plaintiffs, defendant appeals. Affirmed.

See 46 S.E. 738.

On appeal from an order granting or refusing a nonsuit or a demurrer to the evidence, all the evidence that appellant deems material should be sent up, but immaterial matters--especially evidence as to character, etc.

Davidson Bourne & Parker, for appellant.

Locke Craig, for appellees.

CLARK C.J.

There is no "case agreed" on appeal, and none "settled" by the judge; and, there being no error upon the face of the record proper, the judgment must be affirmed. See numerous cases cited in Clark's Code (3d Ed.) p. 769. Errors occurring during the trial can be presented only by a "case on appeal." It is only when the errors are presented by the record proper, as in an appeal from a judgment upon a demurrer, or upon a case agreed, or judgment granting or refusing an injunction to the hearing heard upon affidavits, that a case on appeal can be dispensed with. Id. p. 770. When there is a defect of jurisdiction, or the complaint fails to state a cause of action, that is a defect upon the face of the record proper of which the court will take notice. Cummings v. Hoffman, 113 N.C. 267, 18 S.E. 170; Appomattox v. Buffaloe, 121 N.C. 37, 27 S.E. 999.

By chapter 58, p. 83, Laws 1903, an official stenographer was authorized for Buncombe county; and a clause in section 4 (page 84) of said act provides that ""such stenographic notes shall be typewritten and filed with the clerk of said court and shall become a part of the records of the court." But that did not make them a part of the "record proper" on appeal, which are the summons pleadings, and judgment. Still less did it make such notes a part of the "case on appeal," which is a statement of the exceptions taken on the trial, and so much only of the evidence or charge or other happenings during the trial as is necessary to present intelligibly the exceptions. This court has, both by decisions and an express rule (No. 22) endeavored always to avoid the unnecessary expense and oppression of copying into a transcript and printing superfluous matter that can throw no possible light upon the exceptions taken. Clark's Code (3d Ed.), and cases cited on page 918.

The entries of continuances, and other docket entries, interlocutory judgments in the cause, and incidental matters, as judgments nisi against witnesses, and many other matters, are "a part of the records of the court" in a case, but are not part of the "record on appeal," unless there is some exception presenting it for review. "The evidence forms no part of the record." State v. Godwin, 27 N.C. 401, 44 Am. Dec. 42. Prayers for special instructions are no part of the record on appeal. 24 A. & E. Enc. 165. Though the charge of the court, when in writing (Code, § 414), and prayers for instructions (Code, § 415), must be filed and become a "part of the record of the action," just as these stenographer's notes, they are not a part of the "record proper," nor do they become a part of the transcript or record on appeal, except such parts as some exception may require being put into the "case on appeal" by counsel, if they agree, and, if not, then by the judge when he "settles" the case on appeal.

The "transcript or record on appeal" consists of the "record proper" (i. e., summons, pleadings, and judgment) and the "case on appeal," which last is the exceptions taken, and such of the evidence, charge, prayers, and other matters occurring at the trial as are necessary to present the matters excepted to for review. When the appellant makes out his "case on appeal," he should set out only so much of the evidence as is necessary to point his exceptions to evidence, or to point his exceptions to the charge given or prayers refused. The appellee can accept the appellant's "case," or, if he adds or rejects anything, the judge "settles" the case on appeal.

When there is a nonsuit granted or refused, or a demurrer to the evidence, all the evidence that the appellant deems material should be sent up, but even then immaterial matters--especially evidence as to character and like matters-- should be omitted, and, indeed, all except the evidence claimed to be material. While the stenographer's notes are filed under the statute, the "case on appeal" must be made up under the provisions of section 550 of the Code, just as in all other cases. The appellant will prepare "a concise statement of the case," presenting such matters as were excepted to. If there was a nonsuit refused or taken, and the parties cannot agree upon the evidence, the judge must settle it. The stenographic notes will be of great weight with the judge, but are not conclusive if he has reason to believe there was error or mistake. The stenographer cannot take the place of the judge who is alone...