Payne v. Brown

• Decision Date: 24 January 1934
• Docket Number: 579.
• Citation: 172 S.E. 348,205 N.C. 785
• Parties: PAYNE v. BROWN et al.
• Court: North Carolina Supreme Court

172 S.E. 348

205 N.C. 785

PAYNE v. BROWN et al.

No. 579.

Supreme Court of North Carolina

January 24, 1934

Appeal from Superior Court, Alamance County; Small, Judge.

Proceeding by J. D. Payne against W. W. Brown and others. From an order denying plaintiff's motion for a rehearing on a referee's report and final judgment on such hearing plaintiff appeals.

Appeal dismissed.

Appeal from order denying rehearing on referee's report and final judgment on such hearing must be dismissed, where pleadings and report are omitted from record. Rules of Practice, Rule 19, § 1.

Appeal will be dismissed for failure to send up necessary parts of record proper.

John J Henderson, of Burlington, for appellant.

Coulter & Allen, of Burlington, for appellee Boone.

STACY Chief Justice.

We are not able to determine the nature of this proceeding from the record. But whatever its purpose, it seems that exceptions to a referee's report were heard by Midyette, J., at May term, 1932. His rulings were apparently handed to the clerk with the statement that they should go upon the judgment docket "when the defendants have paid $300 into court." Appeal noted.

Later (the time not indicated), this conditional or purported judgment appears to have been stricken out by Cowper, Special Judge. Presumably, this was done at a term of court held in Alamance county, though the record is silent on the point and the validity of the order may be doubted. Wellons v Lassiter, 200 N.C. 474, 157 S.E. 434.

At the June term, 1933, the plaintiff moved for a "rehearing on the referee's report," and further "that there be a rehearing of the referee's report, exceptions filed, and a final judgment upon said hearing." Motion denied, and plaintiff appeals.

It would seem that a judgment of some kind should be entered upon the referee's report, and, if exceptions were duly and seasonably filed thereto, they should be ruled upon, but the motion seems to be for a "rehearing on the referee's report," whatever this may mean.

The appeal must be dismissed, for the reason that the pleadings and the referee's report have been omitted from the record, and we are not able to ascertain what it is all about. Parks v. Seagraves, 203 N.C. 647, 166 S.E 747. Rule 19, § 1, of the Rules of Practice provides that "the pleadings on which the case was tried, the issues, and the judgment appealed from shall be a part of the transcript in all cases." It is...