Union Central Life Insurance v. Bullard

178 S.E. 113, 207 N.C. 652, 1935 N.C. LEXIS 236

• Court: Supreme Court of North Carolina
• Decided: January 28, 1935
• Status: Published

Opinion

Stacy, 0. J.

It will be observed that there is an apparent conflict between what appears in the judgment and the case on appeal. Where such conflict exists, the recitals appearing in the record proper are controlling. Bartholomew v. Parrish, 190 N. C., 151, 129 S. E., 190; Moore v. Moore, 185 N. C., 332, 117 S. E., 12; S. v. Wheeler, 185 N. C., 670, 116 S. E., 413. “Where there is a repugnancy between the record and the case stated, the record will control.” S. v. Keeter, 80 N. C., 472.

But for another reason the appeal must be dismissed. It is agreed “that the affidavits, summons, and pleadings were in due form,” and therefore they were omitted from the record. This is fatal to the appeal. Riggan v. Harrison, 203 N. C., 191, 165 S. E., 358; Waters v. Waters, 199 N. C., 667, 155 S. E., 564. It is provided by Rule 19, sec. 1, of the Rules of Bractice that “the pleadings on which the case is tried, the issues, and the judgment appealed from shall be a part of the transcript in all cases.” The pleadings are essential in order that we may be advised as to the nature of the action or proceeding. Waters v. Waters, supra. We can judicially know only what properly appears on the record. S. v. Lumber Co., ante, 47, 175 S. E., 713.

Appeal dismissed.