Weil v. . Everitt

83 N.C. 685

• Court: Supreme Court of North Carolina
• Decided: June 5, 1880
• Status: Published

Opinion

Dillard, J.

This is a motion by defendant at her arrival at full age to vacate and annul the proceedings and decree of sale of land had in the probate court during her minority, on the ground of alleged irregularities and defects in the institution and conduct of the cause, and in the manner of •the defence made for her.

The appeal papers consist of nothing but a certified copy of the facts as found by the clerk, although they mostly appear of record in the cause and ought regularly to accompany the appeal, so that we might see for ourselves what are the facts, as they therein exist. .

The main ground on which the amendment or opening of the decree of sale is asked, is, that the whole proceedings in law were coram nonjudice, and it is not satisfactory to us to proceed on the facts as found by the clerk in the absence of a transcript of the record proper. It may be that the clerk has misinterpreted the facts of the cause, or undesign-edly left out some facts material to the proper consideration of the questions presented or intended to be presented for our determination.

For want of a transcript of the record of the original cause in which the motion was made, the papers will be remanded, to the end that the appeal may be perfected as herein indicated.

Per CuriaM. Remanded.