Rice v. . Gutherie

Supreme Court of North Carolina

Rice v. . Gutherie

19 S.E. 636, 114 N.C. 589

DecidedFebruary 5, 1894

StatusPublished

This text of 19 S.E. 636 (Rice v. . Gutherie) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rice v. . Gutherie, 19 S.E. 636, 114 N.C. 589 (N.C. 1894).

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Opinion

Clark, J. :

In this cause an interlocutory order of sale was made at Fall Term, 1891. At Fall Term, 1892, the report of sale came in. A motion to set aside the decree of ■sale was made and a motion to confirm the report and for *590 final judgment. The Court confirmed the report and rendered final judgment, hut continued the motion to set aside the former decree. This was anomalous. But as there was no appeal from the final decree it was properly held by the Judge at the next term that .it would be a vain thing to consider the motion to set aside the first judgment. AVe say this much, treating the statement of the case as a record, but in fact there is no record proper before us. There is nothing before us except the case on appeal. There is neither summons nor pleadings. Though a defective transcript, especially when there is no laches, will be helped out by a certiorari, or the case may be remanded (Clark’s Code, 2d Ed., p. 575), yet in a case like this, where the case on appeal was the sole transcript, the appeal was dismissed. Sweden v. Harris, 107 N. C., 311. Besides, in the present case no excuse is offered for the defective record, nor application for certiorari, nor that the case be remanded.

Appeal Dismissed.

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Clark, J. :

In this cause an interlocutory order of sale was made at Fall Term, 1891. At Fall Term, 1892, the report of sale came in. A motion to set aside the decree of ■sale was made and a motion to confirm the report and for *590 final judgment. The Court confirmed the report and rendered final judgment, hut continued the motion to set aside the former decree. This was anomalous. But as there was no appeal from the final decree it was properly held by the Judge at the next term that .it would be a vain thing to consider the motion to set aside the first judgment. AVe say this much, treating the statement of the case as a record, but in fact there is no record proper before us. There is nothing before us except the case on appeal. There is neither summons nor pleadings. Though a defective transcript, especially when there is no laches, will be helped out by a certiorari, or the case may be remanded (Clark’s Code, 2d Ed., p. 575), yet in a case like this, where the case on appeal was the sole transcript, the appeal was dismissed. Sweden v. Harris, 107 N. C., 311. Besides, in the present case no excuse is offered for the defective record, nor application for certiorari, nor that the case be remanded.

Appeal Dismissed.

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Bluebook (online)

19 S.E. 636, 114 N.C. 589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rice-v-gutherie-nc-1894.

Opinion

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