Walker v. . Scott

Citations

• 11 S.E. 364
• 106 N.C. 56

Syllabus

<p>Appeal — Settlement of Case — Amendment of Case — Filing Exceptions — Rule 27 — Pleading—Issues.</p> <p>1. When appellant’s counsel, on receipt of appellee’s case, sends the papers to the Judge to settle the case on appeal, without any “ request,” as required by The Code, §550, to fix a time and place for settling the case, the Judge is not required, in the absence of such request, to give notice, and the case settled will not be.set aside in this Court, especially when appellant’s counsel took no steps for three months towards securing a hearing before the Judge in regard to the matter.</p> <p>2. While the Court will allow a “ case ” to be withdrawn to be amended by the Judge when he expresses a willingness to correct an error or inadvertence, this will not be done when the Judge states that there is no error, and that he will “ make no change whatever in the case as settled.”</p> <p>3. When exceptions are filed under Rule 27, the recitals contained therein are not conclusive, but it is open to the appellee to controvert them, and to have the Judge pass upon their correctness in “ settling the case on appeal.”</p> <p>4. If an answer or reply is insufficient, the opposite party may move for judgment, and if the motion is refused, he can have his exception noted. If he fail to do this, the objection is usually waived.</p> <p>5. Judgment non obstante veredicto is only granted in oases where the plea confesses a cause of action and the matter relied on in. avoidance is insufficient.</p> <p>6. 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.</p>