Western North Carolina Conference v. . Tally

WiNBORNE, J. At the threshold of consideration of this appeal, we find that the record contains no proper transcript of case on appeal agreed upon by the parties, or settled by the judge, as required by statutes relating to appeals. The record does contain what is called “Statement of Case on Appeal,” served on counsel for appellee by the Sheriff of Randolph County on 14 November, 1947. And while the record does not show exceptions thereto or countercase filed by appellee, it does show an order signed by the presiding judge, in Chambers, at Rockingham, on 30 January, 1948, *6 after due notice to the counsel, and in the presence of counsel for plaintiffs and for defendants, “all in pursuance of the provision made by statute,” reading as follows: “The hereto attached statement of case on appeal is ordered and constituted the correct statement of case on appeal upon the addition to said statement of pages 3, 6, 7, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21, with the evidence of Dr. L. E. Smith, on page 28 and the statement of the court on page 30, also pages 32, 33 and that portion of 34 beginning with the cross-examination of Mr. Tally to the end of page 36, also the evidence of Dr. W. T. Scott, being on page 46, to the bottom of page 49, and beginning again following defendants’ Exception 27 on page 50 to the bottom of page 51.” But there is nothing in the record to show that the order modifying the statement of case on appeal was carried out, or that the purported transcript of “Statement of Case on Appeal” appearing in the record is the statement of the case referred to in the above order. In this connection statute G. S., 1-282, formerly C. S., 643, provides that appellant shall cause to be prepared a concise statement of case on appeal and prescribes what it shall embody, and that a copy shall be served on respondent, appellee, within time given by statute or extended by order of court. It further provides that within time given in like manner respondent shall return the copy with his approval or with specific amendments endorsed or attached. And the provisions of G. S., 1-283, formerly C. S., 644, specify that if the case on appeal be returned by the respondent, with objections as prescribed, the appellant shall immediately request the judge to fix a time and place for settling the case before him. If the request be made by appellant, the statute further provides that “the judge shall forthwith notify the attorneys of the parties to appear before him for that purpose at a certain time and place, within the judicial district” (if he is still in the district), and “at the time and place stated, the judge shall settle and sign the case . . .” Chozen Confections, Inc., v. Johnson, 220 N. C., 432, 17 S. E. (2d), 505. Where, as stated in Waller v. Dudley, 193 N. C., 749, 138 S. E., 128, the trial court adopts the appellant’s statement of case with modifications as indicated in the order in the present case, it is the duty of the appellant to have the statement of case on appeal as thus modified, redrafted and submitted to the judge for his signature. Gaither v. Carpenter, 143 N. C., 240, 55 S. E., 625. Moreover, when he fails to do this, there is no “Case on Appeal.” Mitchell v. Tedder, 107 N. C., 358, 12 S. E., 193; Waller v. Dudley, supra. In the case of Russos v. Bailey, 228 N. C., 783, in opinion by Barnhill, J., it is said: “Exceptions which point out alleged errors occurring during the progress of a trial in which oral testimony is offered can be *7 presented only through a ‘case on appeal’ or ‘case agreed’ . . . This is the sole statutory means of vesting this Court with jurisdiction to hear the appeal, G. S., 1-282, 283; Carter v. Bryant, 199 N. C., 704, 155 S. E., 602. Unless so presented, they are mere surplusage without force or effect . . . and ‘must be treated as a nullity,’ ” citing authorities. And, continuing in the linssos case, it is stated that “When oral evidence is offered, the judge cannot settle the case on appeal by an anticipatory order.” Applying this principle, the assignments of error arising upon the evidence offered at the trial and upon the charge of the court, which is made to appear in the purported transcript, may not be considered by this Court. The only question presented by the appeal is whether there is error on the face of the record proper,—pleadings, verdict and judgment. The judgment appears to follow the verdict of the jury. Indeed, it may be appropriately stated that extraneous matters and side issues appear in the pleadings. The deed, upon which plaintiffs base their complaint, expressly manifests clear intention that the “church building” to be erected on the lot of land conveyed is “to belong to the Christian Church,” and that the Trustees shall hold the lot “forever in trust that they shall erect and build or cause to be erected and built thereon a house or place of worship for the use of the members of the Christian Church of the Deep River Conference.” And it is provided by statute, G. S., 61-3, that “All glebes, lands and tenements, heretofore purchased, given, or devised for the support of any particular ministry, or mode of worship, and all churches and other houses built for the purpose of public worship, and all lands and donations of any kind of property or estate that have been or may he given, granted or devised to any church or religious denomination, religious society or congregation within the state for their respective use, shall be and remain forever to the use and occupancy of that church or denomination, society or congregation for which the glebes, lands, tenements, property and estate were so purchased, given, granted, or devised, or for which such churches, chapels, or other houses of public worship were built; and the estate therein shall be deemed and held to be absolutely vested, as between the parties thereto, in the trustees respectively of such churches, denominations, societies and congregations, for their several use, according to the intent expressed in the conveyance, gift, grant or will; and in case there shall be no trustees, then in such churches, denominations, societies and congregations, respectively according to such intent.” Moreover, it not being controverted that the name of Deep River Conference of the Christian Church was changed in 1894 to Western North Carolina Christian Conference,—and the jury having found in answer to the first issue that Pleasant Cross Christian Church was a *8 member of the Western North Carolina Christian Conference, and, in answer to the fifth issue, that the defendants and those united in interest with them withdrew their affiliation from the Western North Carolina Conference, it is immaterial whether Pleasant Cross Christian Church is congregational or connectional, and decision thereon is unnecessary on this record. Nevertheless, it may not be amiss to call attention to the principle enunciated and applied by this Court in Kerr v. Hicks, 154 N. C., 265, 70 S. E., 468, in opinion by Ciarle, C. J., that “in church organizations, those who adhere and submit to the regular order of the church, local and general, though a minority, are the true congregation,” citing Roshie’s Appeal, 69 Pa., 462, 8 Am. Rep., 280; Gable v. Miller (N. Y. Chancery Court), 10 Paige, 627. In the judgment, there is No error.