Simmons v. . Andrews

Citations

• 10 S.E. 1052
• 106 N.C. 201

Syllabus

<p>Appeal — Settlement of Gase on Appeal — Duty of Appellant— Judge’s Failure of Memory.</p> <p>1. It is the duty of an appellant, after the service of the counter-case on appeal by the appellee, to immediately request the Judge to fix a time and place for settling the case.</p> <p>2. If he fails to do so till after so great a lapse of time that the Judge is unable to remember what took place at the trial, the judgment will be affirmed if there are no errors on the face of the record proper; but if application is made within a reasonable time, and the Judge is unable to settle the case on account of an indistinct memory as to what took place at the trial, a new trial will be granted.</p> <p>3. It is the duty of the appellant, if the case on appeal is not settled, to show affirmatively that the fault is not his.</p> <p>4. If no exceptions are stated by appellant in the case on appeal,- and there are no errors in the record proper, the judgment will be affirmed.</p> <p>5. Quere: If the surety on the bond given on appeal from the Justipe to the Superior Court is a “party” who can appeal from the judgment of the latter Court.</p>