Daniel v. . Rogers

95 N.C. 134

• Court: Supreme Court of North Carolina
• Decided: October 5, 1886
• Status: Published

Opinion

Smith, C. J.

The transcript in this appeal, consists only of the case agreed, the judgment of the Court thereon, and the undertaking on appeal. It is not a controversy “submitted without action” under §507 of The Code, nor can the record he upheld as such, for want of compliance with its requirements. There is no process, or waiver of process, apparent, and there is no pleading, by which we can see that it was properly constituted in the Court from which the appeal comes, nor except from the agreed statement of facts, what are the respective contentions of the parties. The case is the same as that of Rowland v. Mitchell, 90 N. C., 649, and must be disposed of in the same way, by remanding it to the Court below; and it is so ordered. Had these substantial imperfections in the record been called to our attention before argument upon the merits, the argument would have been unnecessary. Remanded.