McCoy v. Lassiter

• Decision Date: 28 February 1886
• Citation: 94 N.C. 131
• Parties: JOHN F. MCCOY v. JOSEPH LASSITER.
• Court: North Carolina Supreme Court

94 N.C. 131

JOHN F. MCCOY

v.JOSEPH LASSITER.

Supreme Court of North Carolina.

February Term, 1886.

Motion by the plaintiff to DISMISS AN APPEAL, heard at February Term, 1885, of the SUPREME COURT.

The facts appear in the opinion.

Mr. Allen, for the plaintiff .

Mr. Geo. Rountree, filed a brief for the defendant .

MERRIMON, J.

The appellee moved at the present term to dismiss the appeal, “for that the appellant did not serve a statement of case on appeal on the appellee, within five days from the entry of appeal, as required by §550 of The Code.”

This motion could not be allowed, even if the facts stated in support of it be accepted as true. The appeal brings the case into this Court, whether a statement of the case, or a case settled on appeal, be sent up or not. Such statement of a case is not essential to the appeal. It might be, that the grounds of error relied upon, would sufficiently appear assigned in the record, without any statement. If so, it would be, unnecessary. State v. Crook, 91 N. C., 536; State v. Freeman, 93 N. C., 558; State v. Byrd, Ibid., 624.

But if in such case no ground of error be sufficiently assigned in the record, the appeal would not be dismissed, but the judgment would be affirmed. Paschall v. Bullock, 80 N. C., 8; Bank v. Creditors, Ibid., 9; Neal v. Mace, 89 N. C., 171.

We, however, find in the record, that there is a case settled upon appeal by the Judge before whom the action was tried, and he states, that “it was agreed that the Court should make statement of case on appeal without notice to counsel.” This plainly implies that the counsel of the parties so agreed. This statement in the record imports verity, and we must accept and act upon it, certainly and at all events, until in some proper way it shall be modified or arrested by the Judge who made it. It is official, and made in the course of the action, and cannot be contradicted collaterally. McDaniel v. King, 89 N. C., 29; Currie v. Clark, 90 N. C., 17; Cheek v. Watson, Ibid., 302; Ware v. Nisbit, 92 N. C., 202.

The counsel for the appellee here, in support of his motion above referred to, produced before us the affidavits of the appellee's counsel in the Court below, to the effect that they did not agree as stated, with any person or authority, and he insisted that the Judge must have acted under a misapprehension of facts, and that the case so settled should be quashed, as having been settled improvidently, or by inadvertence.

This proposition seems to us very singular, and without precedent. We cannot for a moment think of allowing it to prevail. To do so, would be subversive of the integrity and dignity of judicial proceedings, and justly offensive to the judicial office. The law reposes in the Judge implicit confidence as to his ability, integrity, care and circumspection in his official conduct. It confides to, and charges him with the conduct of judicial proceedings, as well as the decision of causes and motions cognizable before him. What he says and does in the course of his office, must be accepted as true. There arises a strong presumption in favor of the integrity and...