Paul v. . Burton

103 S.E. 37, 180 N.C. 45, 1920 N.C. LEXIS 17

• Court: Supreme Court of North Carolina
• Decided: September 15, 1920
• Status: Published

Opinion

HoKE, J.

Without adverting to the various objections presented in the record, except to say that the publication complained of seems to be of a libelous tenor, the statutes more directly appertaining to the principal exception, and authoritative decisions construing the same, are to the effect that errors in the charge, or in granting or refusing to grant prayers for instructions, shall be deemed excepted to “without the filing of any formal objections,” and, if specifically raised and properly presented in the case on appeal, prepared and tendered in apt time, they shall be considered and passed upon by the trial court, and made to appear in the record. This was held in the case of Lowe v. Elliott, 107 N. C., 718, where the positions applicable are stated as follows:

“(1) Exceptions as to all matters other than the charge must be taken at the time.

“(2) Exceptions to the charge, and for refusing to give special instructions, are in time if taken at or before the stating of the case on appeal, though the better practice is to assign all exceptions in making motion for new trial.

“(3) The appellant is entitled to have his assignments of error to the charge, and for refusing or granting special instructions, if set out by him in his statement of case on appeal, incorporated by the judge in the case settled. If they are omitted, certiorari will lie.”

This well considered decision has been again and again approved as the correct interpretation of the statutes applicable and controlling on the subject. Cameron v. Power Co., 137 N. C., 99; National Bank v. Sumner, 119 N. C., 591; Bernhardt v. Brown, 118 N. C., 701, etc.; Consolidated Statutes, secs. 643, 641, 640, 590; Revisal 1905, secs. 591, 590, 554.

In Cameron’s case, speaking to the question, the Court said: “The assignment of errors must appear in the case, and appear, too, as the appellant frames it, otherwise he may be deprived of a most important and valuable right given by, tbe statute. The judge may say what the evidence was, and also what was the charge when it was not in writing, but be may not say bow tbe alleged errors in it shall be excepted to or assigned by tbe appellant, nor can be omit tbe assignment of errors from tbe case because be .does not believe it was properly made or does not conform to tbe rulings upon tbe prayers for instructions or to tbe charge, provided it was set out in tbe case on appeal as tendered by tbe appellant. As to all matters concerning which tbe judge’s statement is conclusive upon us we will not grant a certiorari for tbe purpose of having tbe case amended, unless it appears that an error or mistake has inadvertently been committed by tbe judge, and it appears further that there are reasonable grounds to believe that tbe judge will correct tbe case if be is afforded an opportunity to do so. Porter v. R. R., 97 N. C., 63; Clark’s Code (3 ed.), pp. 935, 936. But in respect to an assignment of errors made in tbe appellant’s case, be is entitled to have it stated in tbe case on appeal settled by a judge as matter of right.”

There was .error, therefore, to appellant’s prejudice in declining to consider bis exceptions to tbe charge, and tbe writ of certiorari will issue, directing tbe trial judge to restate tbe case on appeal so as to s.et forth, in addition, these exceptions, and so much of tbe charge and evidence pertinent as may be required to show their true significance, and enable tbe court to properly pass on their merits.

Error.