Thompson v. Williams

• Decision Date: 27 February 1918
• Docket Number: 9.
• Parties: THOMPSON ET AL. v. WILLIAMS.
• Court: North Carolina Supreme Court

95 S.E. 100

175 N.C. 696

THOMPSON ET AL. v. WILLIAMS.

No. 9.

Supreme Court of North Carolina

February 27, 1918

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

Action by Mary O. Thompson against D. E. Williams, wherein defendant filed a counterclaim. From a judgment dismissing the action plaintiffs appeal, and defendant moves to dismiss the appeal. Motion to dismiss denied. No error.

Court on appeal cannot go behind the judge's certificate that parties being unable to agree on case on appeal, court settled case as certified.

Civil action tried upon these issues:

(1) Did the plaintiff and defendant enter into contract as alleged in the complaint? Answer: Yes.

(2) Did the defendant wrongfully refuse to comply with his part of the contract? Answer: No.

(3) Was the plaintiff ready, able, and willing to comply with his part of the contract? Answer: No.

(4) Did plaintiff abandon his contract? Answer: Yes.

(5) What damages, if any, is the plaintiff entitled to recover? Answer: None.

(6) What damages, if any, is the defendant entitled to recover upon his counterclaim? Answer: None.

Aydlett & Simpson, of Elizabeth City, for appellants.

Ehringhaus & Small, of Elizabeth City, for appellee.

PER CURIAM.

The defendant appellee moved to dismiss the appeal under rules 17 and 21 (81 S.E. ix, x), for that there has been no case on appeal stated and settled by the judge as required by the statute (Revisal, § 591). It is contended, and so appears in the record, that there was a case on appeal and counter case served, and that the judge undertook upon request to settle the case on appeal. The appellee contends that: "The clerk received from the judge the paper marked 'Case on Appeal' attached to his affidavit." It appears therein that instead of settling the case on appeal the judge simply made a few small pen corrections in the notes of charge and referred the balance of case to the clerk arbitrarily ordering him to "copy all the testimony in case as offered by the parties putting the testimony of the witnesses in narrative form." The defendant further contends that:

"The plaintiff's attorneys at the request of the clerk took the stenographer's typewritten notes of the evidence and reduced the same to narrative form under the supervision of the clerk."

It was the duty of plaintiff appellant in stating the case on appeal to make a concise statement of the entire case necessary to present the assignments of error relied upon. In doing so the appellant should set out all necessary and pertinent evidence in narrative form,...