Wallace v. . SalisburyWallace v. . Salisbury
- Reporters:
- , ,
- Before:
- ClauK
The motion to dismiss because there is no casе on appeal must be denied, even in appeals in which there should be a case on appeal. Non constat, but there may be errors on thе face of the record proper; hеnce the proper motion is to affirm the judgment below, and, if this motion is not made, it is the duty of the court, ex mero motu, to inspect the record proper for such errors. Hicks v. Westbrook, 121 N. C., 131; Barrus v. Railroad, ib., 505, and very numerous other cases collected in Clark’s Code (3d Ed.), pp. 769, 770.
But, indeed, on appеal from an order granting or refusing an injunction, no “сase on appeal” is necessary, аs the pleadings and affidavits constitute the record proper, since the facts are rеviewable by this Court, and the appeal is itself аn exception to the only action of the Judge, i. e., the judgment. Hamilton v. Icard, 112 N. C., 593. If any part of the affidavits or pleadings is nоt sent up, either party can always move for a certiorari to supply the missing part of the record. In еquity proceedings the affidavits are a part of the record.
*60 No “case on appeal” is necessary, and tbe appeal from tbe judgment is a sufficient exception and аssignment of error likewise, when tbe judgment below is rendеred upon a case agreed or upоn a demurrer, and for tbe same reason as wben tbe judgment grants or refuses an injunction to tbe beаring, or a temporary injunction, i. e., tbe judgment wbicb is rendеred upon tbe record proper is tbe оnly error assignable or possible. Chamblee v. Baker, 95 N. C., 98; Davenport v. Leary, ib., 203; Greensboro v. McAdoo, 112 N. C., 360; Clark v. Peebles, 120 N. C., 32; Railroad v. Stewart, 132 N. C., 249.
Tbis is an actiоn by certain citizens and residents of James-ville аgainst tbe Commissioners of Martin County, alleging defeсts and vital irregularity in an election held in tbe town оf Jamesville upon tbe question of prohibition, tbе result of wbicb election bad been declared and duly certified to be in favor of saloоns, and that license bad been issued to certаin parties accordingly. Tbe plaintiffs ask to bave tbe election declared void and thаt tbe defendants be restrained in tbe meantime from issuing licenses. Tbe answer squarely denies the allеgations touching tbe validity and regularity of tbe election. Tbe Judge properly dissolved tbe temporary restraining order. Tbe question as to tbe validity of tbe election is presented by tbis direct аttack upon it, and is triable before a Judge аnd jury. But in tbe meantime tbe presumption in favor of tbе correctness of tbe result of tbe eleсtion, as declared by tbe proper officials, is final and conclusive until reversed by tbe judgment of tbe court, after trial of tbe issues in tbis proceeding brought to impeach it. Bynum v. Commissioners, 101 N. C., 414, and cases there cited.
Affirmed.