49 S.E. 76 | N.C. | 1904
Lead Opinion
This is an application by the plaintiff (appellant) for a certiorari. It is alleged in the petition that plaintiff served on the defendant a ease on appeal and defendant filed a counter ease. That the Judge who presided at the trial was requested to name a time and place for settling the case, and he appointed as the place a town which is not in the Thirteenth Judicial District and is at a great distance from the place of trial. The plaintiff further alleges that in the ease on appeal as tendered by its counsel there were cer
The statement of the Judge in the case on appeal as'to what occurred on the trial must be accepted in this Court as importing verity. We always take it as absolutely true. Stale v. Reid, 18 N. C., 377, 28 Am. Dec., 527; Stale v. Gooch, 94 N. C., 982. If there is any exception to this rule it has not yet been presented in any case which has come to this Court, though it must be true that if the ease is tried and the exceptions are noted during the course of the trial, in accordance with the provisions of The Code, sec. 412 (2), the case will be heard here upon the exceptions as thus settled, for the statute virtually so directs. The Code, sec. 550. But the rule as first above stated does not extend to exceptions taken to the refusal of the Judge to grant a prayer or to the granting of a prayer for instruction, nor to the assignments of error in the charge of the Court, which alleged errors, by the express terms of the statute, are deemed to have been duly excepted to. Clark’s Code (3 Ed.), sec. 412 (3). It follows from that provision of the law that the formal assignment of errors relating to such matters may be made for the first time in the case on appeal as tendered by the appellant and it has so been frequently decided by this Court. McKinnon v. Morrison, 104 N. C., 354. See also, Clark’s Code (3 Ed.), p. 513, where the cases will be found fully collected and classified. The Judge, therefore, has nothing to do with the appellant’s assignment of errors, which is solely the act of the appellant and must be treated as his assignment. This being so, it is not of course subject to the control or revision of the Judge.
While we decide that the plaintiff upon the foregoing principles is entitled to the writ of certiorari for the purpose of
The principles we have thus laid down are well supported by the case of Lowe v. Elliott, 107 N. C., 718, in which the present Ghief Justice pointedly states the law upon the subject. That case has since been approved. State v. Black, 109 N. C., 856, 14 L. R. A., 205; Broadwell v. Ray, 111 N. C., 457; Bernhardt v. Brown, 118 N. C., 700, 36 L. R. A., 402; Bank v. Sumner, 119 N. C., 591. See also, Boyer v. Teague, 106 N. C., 571, and Whitesides v. Williams, 66 N. C., 141.
It is alleged in the petition that the place appointed by the Judge for settling the case on appeal was outside the district, and owing to this fact and the great distance from the place of trial to the place so appointed, counsel did not attend. This perhaps is the cause of the defect in the case, as counsel no doubt would have insisted on their right to have the assignment set out in the case if they had been present. The law requires the case to be settled within the Judicial District where it was tried (The Code, sec. 550), and this must be
The writer of this opinion concurs fully in the views of Justice Douglas who files the concurring opinion, as to the right procedure in correcting cases on appeal by the writ of certiorari, and he also thinks that such rules of the Court only should be adopted as are necessary for the proper and orderly transaction of the business of the Court and when adopted should be enforced, not harshly or too rigidly but with due regard to the hearing of cases upon their merits. But he does not think the question is presented by this application, and for that reason it is not decided nor even discussed.
The answer to the petition does not meet its allegations in such a way as should induce us to withhold the writ. Pursuing the course, therefore, suggested in Lowe v. Elliott, supra, a certiorari will issue and the case be remanded, so that appellant’s exceptions and assignment of errors may be inserted in the case on appeal, and so that the Judge may, not re-settle the case (Boyer v. Teague, supra), but make such amendments and corrections in the same as he may deem proper.
To that end let a copy of the petition and the original case on appeal, tendered by the appellant and used as an exhibit in this Court, be transmitted to the Judge with the writ for his information.
It is so ordered.
Petition allowed.
Concurrence Opinion
concurring. The rulings of this Court are uniform, that a certiorari will issue to send up the exceptions to the charge if filed within ten days after adjournment of Court, because filing such exceptions is the act of appellant and the exceptions are a part of the record. Love v. Elliott, 107 N. C., 718. But as to all matters transpiring during the trial, if counsel cannot agree upon a statement, the Judge settles the case and the case thus settled is conclusive. This Court has no power to examine witnesses and find the facts differently, nor can we command the Judge to state the facts differently, for he acts under the obligation of his duty and oath of office. All we can do is to give him an opportunity, and it is but reasonable that we will do this only when it appears, upon affidavit, that there has been an inadvertence on the part of the Judge. If this is denied by the other side, the matter is presumed to be as the Judge has stated it, and the certiorari ought not to issue unless it appear by a statement from the Judge that he will probably make the correction, if given the opportunity. This ruling has never been based upon any idea of courtesy to the Judge, but upon the principle) of Magna Charla that we “will not delay justice.” If the appellant has shown any diligence whatever he has always ample time — for the case must be docketed and printed at least a week before it is called for argument — in which to make the application to the Judge and learn whether or not he will make the correction if given the opportunity. Certainly if the appellant will not take the trouble to- write a letter to the Judge he ought not to get a delay of six months upon a suggestion of error in the Judge’s case on appeal when he was, or could have been, present when the case was settled and his averment of inadvertent omission is denied by counter affidavit. To give such delays to an appellant upon a vague statement that he believes the Judge will make a correction, when if there is the slightest diligence shown he can
Concurrence Opinion
concurring. I concur in the opinion of the Court, and I am glad that the practice has been so fully and so clearly stated. There is, however, one point of practice in this Court that has never met my approval, and is its refusal to consider an ordinary petition for certiorari unless the Judge below has already signified in writing his willingness to amend the record in accordance with the wishes of the petitioner. Such a course does not seem to be in accordance either with the dignity of this Court or the rights of the petitioner, nor is it required by the courtesy due to. the Judge below. If any error has occurred through no fault of the petitioner, he is entitled to have it corrected as a matter of right. The question is not whether the Judge is willing to correct the error, but whether the error has in fact occurred. We may rely upon the willingness of the upright gentlemen who hold our
Another matter I deem proper to mention. As long as our judges retain their independence of thought and action, and I trust they always will, there will be radical differences of opinion in the decision of cases. Similar differences may exist as to the adoption of rules of practice, but in such cases custom does not permit any written dissent. It follows that the adoption of a rule does not imply its unanimous approval by the members of this Court, but simply that it met the views of a majority. In conclusion, I can only say, with the utmost respect for the Court, that there are many of its rules that-received neither my vote nor my approval. After their adoption they become the rules of the Court, binding upon me as well as upon others; and as such have received recognition and support.
Lead Opinion
This is an application by the plaintiff (appellant) for acertiorari. It is alleged in the petition that plaintiff served on the defendant a case on appeal and defendant filed a counter-case. That the judge who presided at the trial was requested to name a time and place for settling the case, and he appointed as the place a town which is not in the Thirteenth Judicial District and is at a great distance from the place of trial. The plaintiff further alleges that in the case on appeal as tendered by its counsel there were certain exceptions to the charge, and it complains that those exceptions were omitted by (100) the judge in his statement of the case by inadvertence. It is also alleged that some of the exceptions contained recitals of instructions *100 given by the court in its charge to the jury which are at variance with the charge set out in the case as settled and signed by the trial judge.
The statement of the judge in the case on appeal as to what occurred on the trial must be accepted in this Court as importing verity. We always take it as absolutely true. S. v. Reid,
While we decide that the plaintiff upon the foregoing principles is entitled to the writ of certiorari for the purpose of having his exceptions and assignment of errors, so far as they relate to the exceptions, given or refused, made a part of the case, the judge should, as a (102) general rule, have the opportunity of considering the case again with reference to the assignment, so that he may the more intelligently and explicitly state what was actually done and said, having in view the questions intended to be raised by the appellant as they appear from his assignment of errors. This is but fair to the judge and to the appellee, and will certainly conduce to a better understanding of the merits of the case by us; and, besides, it will not take from the appellant any advantage to which he is justly entitled. Counsel should present when the case is finally settled to protect the interest of their clients, unless their presence is waived, and if any change is made in the body of the case the appellant should be permitted to reassign errors so as to conform the assignment to the changes thus made.
The principles we have thus laid down are well supported by Love v.Elliott,
It is alleged in the petition that the place appointed by the judge for settling the case on appeal was outside the district, and owing to this fact and the great distance from the place of trial to the place so appointed, counsel did not attend. This perhaps is the cause of the defect in the case, as counsel no doubt would have insisted on their right to have the assignment set out in the case if they had been present. The law requires the case to be settled within the judicial district where it was tried (The Code, sec. 550), and this must be done unless this provision is in some way waived, or counsel agree upon some place outside the (103) district. This requirement of the law is mandatory and should be strictly observed when a request to appoint a time and place to settle the *102
case is made (Whitesides v. Williams and Walker v. Scott, supra; S. v.Williams,
The writer of this opinion concurs fully in the views of Justice Douglas who files the concurring opinion, as to the right procedure in correcting cases on appeal by the writ of certiorari, and he also thinks that such rules of the Court only should be adopted as are necessary for the proper and orderly transaction of the business of the Court, and when adopted should be enforced, not harshly or too rigidly, but with due regard to the hearing of cases upon their merits. But he does not think the question is presented by this application, and for that reason it is not decided nor even discussed.
The answer to the petition does not meet its allegations in such a way as should induce us to withhold the writ. Pursuing the course, therefore, suggested in Lowe v. Elliott, supra, a certiorari will issue and the case be remanded so that appellant's exceptions and assignment of errors may be inserted in the case on appeal, and so that the judge may, not resettle the case (Boyer v. Teague, supra), but make such amendments and corrections in the same as he may deem proper.
To that end let a copy of the petition and the original case on appeal, tendered by the appellant and used as an exhibit in this Court, be transmitted to the judge with the writ for his information.
Petition allowed.