Ingram v. Yadkin River Power Co.

• Citation: 107 S.E. 209,181 N.C. 359
• Decision Date: 11 May 1921
• Docket Number: 410.
• Parties: INGRAM ET UX. v. YADKIN RIVER POWER CO.
• Court: United States State Supreme Court of North Carolina

107 S.E. 209

181 N.C. 359

INGRAM ET UX. v. YADKIN RIVER POWER CO.

No. 410.

Supreme Court of North Carolina

May 11, 1921

Appeal from Superior Court, Richmond County; Elroy, Judge.

Action by W. P. Ingram and wife against the Yadkin River Power Company. Judgment for defendant, and plaintiffs appeal. Remanded.

Where the case as settled by the trial judge is not signed by him and there is no agreed statement of the case, the record contains no proper statement of the case on appeal, and the court cannot determine what contentions, if any, were abandoned by plaintiffs during the trial, nor what admissions, if any, were made by the parties.

Stack Parker & Craig, of Monroe, and W. R. Jones, of Rockingham for appellants.

Robinson Caudle & Pruette, of Wadesboro, Thomas & Phillips and F. W. Bynum, all of Rockingham, and Jas. H. Pou and W. L. Currie, both of Raleigh, for appellee.

STACY J.

The record contains no proper statement of case on appeal. The case, as settled by the trial judge, is not signed by him; and there is no agreed statement of the case. This was a matter of procedure to which the appellants should have given proper attention. C. S. 642, 643, and 644; Holloman v. Holloman, 172 N.C. 835, 90 S.E. 10; Gaither v. Carpenter, 143 N.C. 240, 55 S.E. 625; Stevens v. Smathers, 123 N.C. 499, 31 S.E. 721.

Upon the argument it developed that there is a difference between counsel as to what contentions, if any, were abandoned by plaintiffs during the trial in the superior court with respect to the alleged damages resulting from the concrete dam. On this point the record is not altogether clear. In Gaither v. Carpenter, supra, it was said:

"The 'case on appeal' should contain such incidents of the trial as were duly excepted to. What those incidents were is a matter which, if not agreed upon by counsel, must be 'settled' by the trial judge, and cannot be determined by this court."

It should also contain a statement of what admissions, if any, were made by the parties during the progress of the trial, if said admissions are deemed to be material.

It is well understood that, except in proper instances, a party to a suit should not be allowed to change his position with respect to a material matter in the course of litigation. Hill v. Railroad, 178 N.C. 612, 101 S.E. 376; Lindsey v. Mitchell, 174 N.C. 458, 93 S.E. 955. Especially is this so where the change of front is sought to be made between the trial and appellate courts. Webb v Rosemond, 172 N.C. 848, 90 S.E. 306; Coble v. Barringer, 171 N.C. 445, ...