Thornton v. Brady

• Decision Date: 26 March 1888
• Citation: 5 S.E. 910,100 N.C. 38
• Parties: THORNTON et ux v. BRADY.
• Court: North Carolina Supreme Court

5 S.E. 910

100 N.C. 38

THORNTON et ux v. BRADY.

Supreme Court of North Carolina

March 26, 1888

Appeal from superior court, Cumberland county; WALTER CLARK, Judge.

A. G Thornton et ux. sued A. G. Brady for a settlement of cross-accounts, and pending such settlement, for an injunction to prevent foreclosure of mortgage. Judgment for defendant. Plaintiffs appeal.

N. W Ray, for appellants.

D Rose, for appellee.

MERRIMON J.

In this case no exception or assignment of error appears, in terms or by implication in the case stated or settled on appeal, or in the record proper. This is conceded, but on the argument the counsel for the appellants insisted that inasmuch as the statute (Code, § 957) provides that "in every case the court [this court] may render such sentence, judgment, and decree as on inspection of the whole record it shall appear to them ought in law to be rendered thereon," etc., it becomes the duty of this court to scrutinize all such matters and things as may occur and be noted on the record in the course of the action, including the trial, whether error be assigned or not.

This is a misinterpretation of the statutory provision cited. It refers only to such constituent matters of the action as must necessarily go upon and constitute the record of it, and which the court sees and must take notice of, such as the pleadings, the verdict, and the judgment. It does not refer to such matters and things as are but incident to the action and do not necessarily go upon the record, such as the rulings of the court upon questions arising upon motions, evidence, its instructions to the jury, and the like. Such matters as those last mentioned do not go upon and become part of the record, unless the correctness of the decisions of the court upon them are questioned, in which case they are made part of the record, to the end the complaining party may enter his objections and the grounds thereof and assign error. Such decisions of the court are presumed to be correct and acceptable to the parties, in the absence of objection so made. But as to the essential parts of the record, as pointed out above, the court will, ex mero motu, take notice of errors apparent in it, correct them, and enter such judgment as in law ought to be rendered. The reason is that it is the first and imperative duty of the court to render only such judgment as the law arising upon the facts ascertained allows and will sanction. If what it...