Lowe v. Elliott

• Decision Date: 15 December 1890
• Citation: 12 S.E. 383,107 N.C. 718
• Parties: LOWE v. ELLIOTT et al.
• Court: North Carolina Supreme Court

12 S.E. 383

107 N.C. 718

LOWE v. ELLIOTT et al.

Supreme Court of North Carolina

December 15, 1890

Petition for certiorari.

Certiorari will issue to require a judge to incorporate in the case settled on appeal assignments of error in the instructions given and refused, made by appellant in stating his case.

Burwell & Walker, for petitioners.

Batchelor & Devereux, opposed.

CLARK J.

"The case stated for an appeal to this court," in the words of RUFFIN, C.J., "is here taken to be absolutely true as to all matters which occur on the trial, or purport to have been acted in the court from which the appeal comes." State v. Reid, 1 Dev. & B. 377; State v Ephraim, 2 Dev. & B. 162, which are cited and approved in State v. Gooch, 94 N.C. 982. As to such matters a certiorari will not lie unless it appear by affidavit that by inadvertence or mistake the judge has committed an error which the petitioner has reason to believe the judge will correct if given the opportunity, and the writ will not even in such case be granted unless the grounds for such belief are set forth so that the court may pass upon the reasonableness thereof. Porter v. Railroad Co., 97 N.C. 63, 2 S.E. Rep. 580. Exceptions to evidence, and all matters other than the charge, must be taken at the time. (Code, § 412, subd. 2,) or are waived. State v Ballard, 97 N.C. 443, 1 S.E. Rep. 685. But it is otherwise as to assignments of error in the charge or for granting or refusing special instructions. These need not be taken on the trial. Code, § 412, subd. 3. In McKinnon v Morrison, 104 N.C. 354, 10 S.E. Rep. 513, the court suggested that it would be better for counsel to assign such errors on a motion for a new trial so as to give the judge himself a chance to correct the errors, if any, committed in instructing the jury, but it conceded that the appellant had a right to withhold them till stating his case on appeal; but, if not then stated, the exceptions would be waived, and could not be assigned here.

The assignment of errors in the instructions to the jury are no part of the occurrences on the trial. This is the act of the appellant. It is his assignment of error, and must appear upon the face of appellant's statement of the case on appeal. It is not a matter which occurred or did not occur on the trial, and as to the occurrence or non-occurrence of which the judge must determine in settling the case. It is true counsel in assigning error...