Stephens v. McDonald.

43 S.E. 592, 132 N.C. 135, 1903 N.C. LEXIS 247

• Court: Supreme Court of North Carolina
• Decided: March 17, 1903
• Status: Published

Opinion

Clark, C. J.

This is an action of ejectment for two tracts of land, one of 17 acres and one of 50 acres. At the close of the plaintiff’s testimony the defendant moved to “non-suit the plaintiffs under the statute” because they had failed to make out a case, the motion was allowed and the plaintiffs appealed. The surveyor, witness for the plaintiffs testified “it is not possible to locate the 17 acre tract” and without going over the testimony in detail, it is sufficient to say that his Honor’s conclusion was clearly correct as to both tracts.

It is proper to note that, though a plat is referred to in the pleadings and evidence and is necessary to the understanding of the appeal, only two copies are sent up with the record. While the court does not require that maps, plats and similar exhibits' should be printed, the same number of copies (15) thereof should be filed as is required to be filed of the printed record and briefs. In Smith v. Fite, 98 N. C., 517, the court said that when a plat is used and referred to in the trial below, it is the duty of the appellant to have it sent up in the case, and in Whichard v. Railroad, 117 N. C., 614, the court said that it “gave notice of a rule” that whenever a survey and plat are necessary for the proper understanding of an appeal (in that case an action for the diversion of water) unless a survey is made and “15 maps of the locality are sent up as exhibits” in the case “the judgment of the court below will be affirmed or the appeal dismissed.” There are very few actions of ejectment in which a plat is not indispensable for a. clear comprehension of the points involved.

The judgment of non-suit is

Affirmed.