94 N.C. 131 | N.C. | 1886
The appellee moved at the present term to dismiss the appeal, “for that the appellant did not serve a statement of case on appeal on the appellee, within five days from the entry of appeal, as required by §550 of The Code.”
This motion could not be allowed, even if the facts stated in support of it be accepted as true. The appeal brings the case into this Court, whether a statement of the case, or a case settled on appeal, be sent up or not. Such statement of a case is not essentia] to the appeal. It might be, that the grounds of error relied upon, would sufficiently appear assigned in the record, without any statement. If so, it would be, unnecessary. State v. Crook, 91 N. C., 536; State v. Freeman, 93 N. C., 558 ; State v. Byrd, Ibid., 624.
But if in such case no ground of error be sufficiently assigned in the record, the appeal would not be dismissed, but the judgment would be affirmed. Paschall v. Bullock, 80 N. C., 8; Bank v. Creditors, Ibid., 9; Neal v. Mace, 89 N. C., 171.
We, however, find in the record, that there is a case settled upon appeal by the Judge before whom the action was tried, and he states, that “it was agreed that the Court should make statement of case on appeal without notice to counsel.” This plainly implies that the counsel of the parties so agreed. This statement in the record imports verity, and we must accept and act upon it, certainly and at all events, until in some proper way it shall be modified or arrested by the Judge who made it. It is official, and made in the course of the action, and cannot be contradicted collaterally. McDaniel v. King, 89 N. C., 29; Currie v. Clark, 90 N. C., 17; Cheek v. Watson, Ibid., 302; Ware v. Nisbit, 92 N. C., 202.
The counsel for the appellee here, in support of his motion above referred to, produced before us the affidavits of the appel-lee’s counsel in the Court below, to the effect that they did not agree as stated, with any person or authority, and he insisted that the Judge must have acted under a misapprehension of facts, and that the case so settled should be quashed, as having been settled improvidently, or by inadvertence.
The highly respectable counsel of the appellee, disclaimed all purpose to question the integrity of the statement of the Judge who settled the case upon appeal, but said, that in view of the affidavits and rights of the appellee claimed, he could not see any present remedy for the latter, other than that insisted upon by him.
We are not called upon here to suggest the remedy — to do so is the office of counsel. It is sufficient for us to say that the remedy adopted is not a proper one, and cannot prevail.
The same counsel afterwards made a motion, ore terms, to remand the case, to the end that the appellee might take steps to have the case settled upon appeal quashed by the Judge who
The motion (o dismiss the appeal, and the relief demanded incident to and in support of it, must be denied.
Motion denied.