McMahan v. Southern Railway Co.

Stacy, C. J., after stating the case: If the judgment, entered at the June Term, Buncombe Superior Court, dismissing defendant’s appeal, be correct, the sufficiency of the evidence under the Federal rule (Hubbard v. R. R., ante, 675) to carry the case to the jury would not reach us for decision on this appeal. Defendant says that as only one question was presented or passed upon in the Superior Court on its appeal from the judgment of nonsuit entered in the General County Court, to wit, the sufficiency of the evidence to carry the case to the jury, no statement of case on appeal to the Supreme Court was necessary; and, for this position, the decision *807 in Baker v. Clayton, 202 N. C., 741, 164 S. E., 233, is cited as authority. But the Baker case holds otherwise. There, it was said: “The record on appeal to the Superior Court from a judgment of the county court is not, and except perhaps in rare instances, e. g., nonsuit or demurrer, ought not to be made the record on appeal to the Supreme Court.” And in those eases where it is permissible or desirable to use the record on appeal to the Superior Court as the record on appeal to the Supreme Court, it must be made such, or “settled as the case on appeal,” in some accredited way,.either by agreement of counsel or as provided by C. S., 643 and 644. Technically, however, the plaintiff was not entitled to have the appeal dismissed. Wallace v. Salisbury, 147 N. C., 58, 60 S. E., 713; Roberts v. Bus Co., 198 N. C., 779, 153 S. E., 398; Pruitt v. Wood, 199 N. C., 788, 156 S. E., 126. Non constat that error may not appear on the face of the judgment. The Court was not asked to ascertain and adjudge that the appeal had been abandoned. Pentuff v. Park, 195 N. C., 609, 143 S. E., 139; Dunbar v. Tobacco Growers, 190 N. C., 608, 130 S. E., 505; Avery v. Pritchard, 93 N. C., 266. But as no reversible error appears on the face of the record proper, to which we are now limited in our consideration — there being no proper statement of case on appeal — the judgment will be upheld. Affirmed.