26 S.E. 261 | N.C. | 1896
If the appellee does not accede to the appellant's statement of the case on appeal, The Code, sec. 550, prescribes that the respondent shall return it with specific amendments thereto. It has been held that a counter-case is a sufficient compliance with this requirement. McDaniel v. Scurlock,
The exceptions filed by the appellee strictly ought to be specific (or a counter-case), so that the appellant, if he sees fit, may accept (911) them and modify his case accordingly. In the present instance the solicitor's exceptions to appellant's case are: "1. For that the evidence is not correctly stated. 2. For that the instructions of the judge are not correctly stated." This practice has been so long and generally recognized that, though it is not strictly a compliance with the law, we are loath to open up a new source of controversy over the details of the settlement of "cases on appeal" (matters which are apart from the merits of the controversy) by drawing the line as to what would be sufficiently specific amendments in different cases. It is clear that to take the appellant's statement of the case as amended by the exceptions would leave the case on appeal so indefinite as to be a nullity. The appellant will not be taken as having accepted them, but he should have called on the judge to settle the case. In view of the general nature of the appellee's exceptions, following the course taken in Hinton v.Greenleaf, supra, and Mitchell v. Tedder,
REMANDED.
Cited: Gaither v. Carpenter,