Waller v. Dudley

• Decision Date: 18 May 1927
• Docket Number: (No. 215.)
• Citation: 138 S.E. 128
• Court: North Carolina Supreme Court
• Parties: WALLER et al. v. DUDLEY.

138 S.E. 128

(193 N. C. 749)

WALLER et al.

v.DUDLEY.

(No. 215.)

Supreme Court of North Carolina.

May 18, 1927.

Appeal from Superior Court, Lenoir County; Devin, Judge.

Civil action in trespass by E. H. Waller and others against C. A. Dudley, Jr. From an adverse judgment, defendant appeals and brings certiorari. Plaintiffs move to dismiss the appeal. Motion overruled, and cause remanded.

See, also, 193 N. C. 354, 137 S. E. 149.

Shaw & Jones, of Kinston, for appellant.

Rouse & Rouse and Sutton & Greene, all of Kinston, for appellees.

STACY, C. J. [1, 2] The record in this case has been brought up in response to a writ of certiorari, but it contains no proper statement of case on appeal. The "case, " as settled by the trial judge, is not signed by him, and there is no agreed statement of the case. This is a matter of procedure which the appellant should have given proper attention. C. S. §§ 642-644; Ingram v. Yadkin Power Co., 181 N. C. 359, 107 S. E. 209. With no errors appearing on the face of the record proper, the judgment might well be affirmed, but, as no motion to this effect has been made by the appellees, the court, under the circumstances, is not disposed to enter the order ex mero motu. The proper motion, in the absence of errors appearing on the face of the record, or properly assigned, is to affirm the judgment. Randleman Mfg. Co. v. Simmons, 97 N. C. 89, 1 S. E. 923. The motion of appellees to dismiss the appeal must be overruled. Walker v. Scott, 102 N. C. 487, 9 S. E. 488.

Where the appellees file exceptions to the statement of case on appeal as tendered by appellant, and the trial court, as here, adopts appellant's statement of case as amended by "appellees' exceptions with modifications as indicated, " it is the duty of the appellant to have the statement of case on appeal, as thus modified, redrafted and submitted to the judge for his signature. Gaither v. Carpenter, 143 N. C. 240, 55 S. E. 625. "When he does not do this, but merely sends up his statement of case, together with appellee's exceptions and the order of the judge, there is no 'case settled on appeal, ' and the court (if there are no errors on the face of the record proper) may, on motion of appellee, or ex mero motu, either affirm the judgment or remand the case." Mitchell v. Tedder, 107 N. C. 358, 12 S. E. 193.

The cause will be remanded, to the end that the appellant may have an opportunity to comply with the order of the court by redrafting and reforming the case on appeal...