In Re Will of Ricks

126 S.E. 422, 189 N.C. 187

• Court: Supreme Court of North Carolina
• Decided: February 18, 1925
• Status: Published

Opinion

Adams, J.

It is perfectly evident from one of the affidavits in the record that the question presented to Judge Devin had previously been considered and disposed of by Judge Bond. Indeed, the facts were determined, according to the affidavit, when the case on appeal and the eountercase were submitted to the trial judge for settlement. In these circumstances the case on appeal is controlling; it imports verity and must be accepted as true as to all matters involved in the appeal and determined by the judge. S. v. Thomas, 184 N. C., 666. The appellants had no right to call upon Judge Devin to decide a question which Judge Bond had previously considered in making up the case on appeal. Bizzell v. Equipment Co., 182 N. C., 98, is not conclusive on the point raised here. In that case it is stated that want of authority to compromise the case was unknown to the presiding judge and was “only made to appear at a later hearing.”

The caveators surely should not object to a judgment against the pro-pounders for the costs; and if not content with the judgment in other respects, they should have prosecuted their appeal. Runnion v. Ramsay, 93 N. C., 411; Falkner v. Hunt, 68 N. C., 475.

The judgment is

Affirmed.

OoNNOR, J., not sitting.