Whitley v. Caddell, 236 N.C. 516

236 N.C. 516 | N.C. | 1952

VaxehtiNe, J.

The effort of the presiding judge to settle the case on appeal at the time judgment was signed is not a compliance with the statutes regulating appeal procedure and does not serve to properly present the case for review. When oral evidence is offered, the case on appeal cannot be settled by ah anticipatory order. Hall v. Hall, 235 N.C. 711, and cases there cited.

The failure of appellant to bring up and docket a proper statement of the case limits our consideration to the question of whether there is error in the judgment. Parker Co. v. Bank, 200 N.C. 411, 157 S.E. 419; Casualty Co. v. Green, 200 N.C. 535, 157 S.E. 797; Dixon v. Osborne, 201 N.C. 489, 160 S.E. 579; Winchester v. Brotherhood of R. R. Trainmen, 203 N.C. 735, 167 S.E. 49. Hence, defendants’ exception to the judgment restricts the scope of this inquiry to a consideration of the correctness of the law as applied to the facts found. roach v. Pritchett, 228 N.C. 747, 47 S.E. 2d 20; Hall v. Hall, supra.

There are no facts found by the court which would establish excusable neglect on the part of the defendants. Vick v. Baker, 122 N.C. 98, 29 S.E. 64; Pepper v. Clegg, 132 N.C. 312, 43 S.E. 906; Johnson v. Sidbury, 225 N.C. 208, 34 S.E. 2d 67. Therefore, the law was correctly applied to the facts found, and defendants’ motion was properly denied.

The defendants should have exercised that degree of diligence ordinarily employed by men of reasonable prudence in looking after business matters of the same or similar importance. Sluder v. Rollins, 76 N.C. 271; Roberts v. Allman, 106 N.C. 391, 11 S.E. 424; Pierce v. Eller, 167 N.C. 672, 83 S.E. 758; Holland v. Benevolent Assn., 176 N.C. 86, 97 S.E. 150; Gaboon v. Brinkley, 176 N.C. 5, 96 S.E. 650; Graver v. Spaugh, 226 N.C. 450, 38 S.E. 2d 525; Whitaker v. Raines, 226 N.C. 526, 89 S.E. 2d 266.

If the business of the defendants’ attorney was so pressing as to prevent his attendance upon the trial of this case, he should have made the necessary preparation to have the case handled by some other attorney, or should have requested a continuance based upon such reasons as he could appropriately assign. This was not done, although due notice was given to the defendants’ attorney, by order of the presiding judge, that the case would be tried on Wednesday of the week in which it had been duly and properly calendared for trial.

Upon a careful examination of the record before us, we must conclude that the ruling of the court below was correct and the judgment must be upheld.

Affirmed.