18 S.E. 205 | N.C. | 1893
This was a petition for a certiorari, filed in this Court upon the ground that his Honor, in making up the case on appeal, had inadvertently omitted some portions of the testimony which were material to be set out, in order that the appellant might fairly present his exceptions; that said testimony was set out in the case tendered by the appellant, and in the countercase offered by appellee, and also appeared in the notes of the judge, which were attached to the affidavit of the petitioner, and that the foregoing facts are the grounds of petitioner's belief that if an opportunity was afforded him, his Honor would insert in the case the testimony referred to, in (320) response to the certiorari. There is no allegation, however, that any application had been made to his Honor, or that any intimation had been made by him that he would, upon opportunity, make the amendment desired.
In Boyer v. Teague,
And in Broadwell v. Ray,
But it is said in McDaniel v. King,
This case settled by the trial judge imports absolute verity.
This Court has no authority to require the judge, in settling the case, to set forth any matter of evidence alleged to have been omitted. It is entirely within his discretion to amend the case when the opportunity is afforded him by the certiorari. "The writ will not, even in such case, be granted unless the grounds for such belief are set forth so that the court may pass upon the reasonableness thereof." Lowe v. Elliott,
It seems but fair to the trial judge that he should have the (321) opportunity presented to him to intimate whether he will make the desired correction.
For the reasons stated in McDaniel v. King, supra, that this Court will not direct a certiorari to be issued in the first instance, it not being made to appear that the judge below has intimated that he will make the correction if the case is presented to him again, the prayer of the petitioner is denied.
Certiorari denied.
Cited: Cameron v. Power Co.,