Doe on the Demise of Kirkman v. Dixon

66 N.C. 406

• Court: Supreme Court of North Carolina
• Decided: January 5, 1872
• Status: Published

Opinion

Reads, J.

When the plan tiff appealed it was her duty to» prepare a concise statement oí the case, <fce., and have the same» served on the respondent.

What was intended to be such statement was prepared by the-plaintiff, and was returned by respondent with his objections. It then became the duty of the plaintiff to apply to the Judge-to give the parties a day before him to settle the case. O. 0.. P., 301. This it seems, was hot done by the plaintiff.

The case, therefore, being before us simply upon the record,, and no assignment of errors, all that we can do is to affirm the. judgment.

Upon affidavit and motion of plaintiff at June Term of this-Court, an order was made that the Judge below certify a statement of the case, or show cause why a mandamus should not. issue.

The Judge shows cause that no application had been made-to him as required by G. G. P, 301. And of course there is, no ground for a mandamus.

Whether the <7. O. P., 133, allows oí any relief for the plaintiff, by motion below, to have the judgment vacated, upon the= ground of mistake, surprise, inadvertence, or excusable neglect and to have leave to amend the proceedings so as to make them, conform to the provisions of the Code, is not now for our consideration.

There is no error. Affirmed.

Pek C ueiam. Judgment affirmed..