Thе appellant asks to withdraw the case and recommit it to the Judge to “settle the case'’ over again. Appellant’s counsel files an affidavit that the case as settled by the Judge is “erroneous in various particulars, to defendant’s hurt, without giving him any notice of time and place of settling the case on appeal,” and that the Judge has by letter expressed his willingness to give the appellant such notiсe now, if the Court will permit the case to be withdrawn for that purpose. The letter of the Judge referred to, states that the appellant’s counsel forwarded him the papers to “ settle the casе” wdthout any request to name a time and place for that purpose; that he was then in the Eastern part of the State, and in the absence of such request he did not suppose counsel (who resides in Chеrokee) desired such notice; that if desired he will still give it, “but the case as prepared will not be altered in any respect whatever,” and that no exception was taken during the trial, except as stated.
The case as settled by the Judge must be taken as correct. The law provides that when counsel disagree he must settle it. It is difficult to see how any other provision could be made.
State
v.
Debnam,
*58
The statute
(The Code,
§ 550) provides that when appellee’s counter-case is served, the appellant shall immediately “ request the Judge to fix a time and place for settling the case before him.” When this case was before us the second time (
The motion is denied.
The case on appeal, settled by the Judge, states that thеre were no exceptions taken on the trial, except to the following instruction in the charge:
“His Honor charged the jury, among other things, that if they should find that the defendants, and those under whom they claim, had been in the actual occupation of the land in controversy for twenty years prior to the commencement of this action, the plaintiffs would not be entitled to recover, unless the defendants, and thоse under whom they claim, during such occupation or possession of said land, recognized and acknowledged the right and title of the plaintiffs, or those under whom they claim, to the same. That if they should find that the dеfendants, and those under whom they claim, entered into possession of said land and occupied the same, recognizing and acknowledging the title of the plaintiffs thereto, and held the same under the plaintiffs, and those under whom they claim, the plaintiffs would be entitled to recover, unless, prior to the assertion of this adverse claim,, the defendants, or those under whom they claimed, had surrendered the possession of the said land to the plaintiffs, or those under whom they claimed, or shown actual adverse possession of the same in twenty years prior to the beginning of this action.”
We see no error therein of which the defendants can complain. Indeed, the exception-was not seriously maintained in this Court.
The appellant, however, contends that he filed his exceptions to the case in the Clerk’s office within tеn days after judgment, and that by virtue of Rule 27 of this Court, they became part of the record and control the case stated by the Judge. These exceptions recite certain instructions, alleged therein by аppellant to have been given by the Judge, and
*60
certain evidence which he alleged was admitted, and his exceptions to the same. The idea is, at least, novel. An appellant cannot, by such recitals, take away the appellee’s opportunity to controvert the fact whether such instructions were given, or such evidence admitted, and deprive him of the right to have the Judge pass upon those matters by a “settlement of the case.” If this could be done, the provisions of
The Code,
§ 550, in regard to the manner of settling cases on appeal, are a nullity, and an appellant can always seсure a new trial by filing exceptions to suit himself. The
reductio ad absurdum
is apparent. Rule 27 provides that exceptions shall be set out by appellant, in making up his statement of case on appeal, and, in those few cases in wlrch no statement of case on appeal is required, the appellant can file his exceptions within ten days after judgment, in the Clerk’s office, and they will be sent up as a part of the reсord. The rule reads as follows: “ Every appellant shall set out in his statement of case served on appeal, his exceptions to the proceedings, rulings or judgment of the Court, briefly and clearly statеd and numbered. If there be no case settled, then within ten days next after the end of the term at which the judgment is rendered from which an appeal shall be taken, or in case of a ruling of the Court at Chambers and not in term time, within ten days after notice thereof, appellant shall file the said exceptions i-n the Clerk’s office. No other exceptions than those so set out or filed, and made part of the cаse or record, shall be considered by this Court, except exceptions to the jurisdiction, or because the complaint does not state a cause of action, or motions in arrest of judgment for the insufficiency of an indictment.” This rule is in conformity to §550, and other like provisions in
The Code,
and is to be construed in connection with them. It provides a mode for presenting exceptions, but it does not relieve a party from the consequences of not having taken an exception at the time which is required by
The Code,
§ 412 (2), as
*61
to everything except the charge. As to the charge, exception can be taken for the first time in making uр statement of case on appeal.
The Code,
§412 (3);
McKinnon
v.
Morrison,
The appellant further insists that the answer sets up a counter-clаim to which the reply is not sufficient in form as a denial; that upon the face of the record he is entitled here to judgment
non obstante veredicto,
and he relies upon
The Code,
§ 957;
Thornton
v.
Brady,
100 N. C., &8;
McKinnon
v.
Morrison, sUpra.
The plaintiff contends that the replication is sufficient, and if it were not, that the answer only sets up an equitable defence — not a counter-claim — and no reply was required.
Barnhardt
v.
Smith,
The appellant further insists that, upon the face of the record, an additional issue should have been submitted upon his demand for affirmative relief in the answer. The Court, by not submitting it, seems to have been of the opinion that no issue was raised thereby other than as embraced in the issue submitted. The appellant seems to have thought so too, as he tendered no other issue and made no exception to the issues submitted, nor to the failure to submit others. “A party who fails to tender, on the trial, such issues as he deems proper, cannot be heard, on appeal, to complain that the issues submitted do not cover the entire case.”
Kidder
v.
McIlhenny,
No error.