Ingram v. Yadkin River Power Co.

107 S.E. 209, 181 N.C. 359, 1921 N.C. LEXIS 76

• Court: Supreme Court of North Carolina
• Decided: May 11, 1921
• Status: Published

Opinion

Stacy, J.

The record contains no proper statement of case on appeal. The case, as settled by the trial judge, is not signed by him; and there is no agreed statement of the case. This was a matter of procedure to which the appellants should have given proper attention. C. S., 642, 643, and 644; Holloman v. Holloman, 172 N. C., 835; Gaither v. Carpenter, 143 N. C., 241; Stevens v. Smathers, 123 N. C., 499.

Upon the argument it developed that there’is a-difference between Counsel as to what contentions, if any, were abandoned by plaintiffs during the trial in the Superior Court with respect to the alleged damages resulting from the concrete dam. On this point the record is not altogether clear. In Gaither v. Carpenter, supra, it was said: “The case on appeal should contain such incidents of the trial as were duly excepted to. What those incidents were is a matter which, if not agreed upon by counsel, must be settled by the trial judge, and cannot be determined by this Court.” It should also contain a statement of what admissions, if any, were made by the parties during the progress of the trial, if said admissions are deemed to be material.

It is well understood that, except in proper instances, a party to a suit should not be allowed to change his position with respect to a material matter in the course of litigation. Hill v. R. R., 178 N. C., 612; Lindsey v. Mitchell, 174 N. C., 458. Especially .is this so where the change of front is sought to be made between the trial and appellate courts. Webb v. Rosemond, 172 N. C., 848; Coble v. Barringer, 171 N. C., 445. We do not intend to say, or intimate, tbat sucb is tbe case bere. It is one ■of tbe mooted questions wbicb was argued on tbe bearing, and we do not know bow it is. Neither do we mean to suggest tbat tbe point was raised in a proper manner at tbe time tbe case was “settled,” nor even, if established, would be a controlling or material fact in tbe case at bar. ~We only give tbe parties an opportunity to have tbe matter determined if they are in position to do so, and consider it worth while.

Tbe cause will be remanded to tbe end tbat a proper statement of tbe ■case on appeal may be bad, including a finding by tbe judge, if desirable, and a more definite one can be made, touching plaintiffs’ alleged abandonment of claim for damages resulting from tbe concrete dam. Tbe appellants, being tbe moving parties, will request tbe judge to fix a time and place for tbe bearing.

It will not be necessary to have tbe entire statement of case on appeal reprinted if tbe present record is found to be correct. In sucb event a supplemental order will suffice.

Remanded.