Thompson v. . Williams

Pee Cueiam : The defendant, appellee, moved to dismiss the appeal under Rules 17 and 21, for that there has been no case on appeal stated and settled by the judge, as required by the statute, Revisa!, sec. 591. It is contended, and so appears in the record, that there was a case *697 ■on appeal and counter-ease served, and tbat tbe judge undertook, upon request, to settle tbe ease on appeal. Tbe appellee contends tbat tbe •clerk received from tbe judge tbe paper marked “Case on Appeal” attacked to bis affidavit. It appears therein tbat instead of settling tbe •case on appeal tbe judge simply made a few small pen corrections in the notes of charge and referred tbe balance of case to tbe clerk, arbitrarily ordering him to “copy all tbe testimony in case as offered by tbe parties, putting tbe testimony of tbe witnesses in narrative form.” Tbe defendant further contends tbat “tbe plaintiff’s attorneys, at the request of tbe clerk, took tbe stenographer’s typewritten notes of tbe -evidence and reduced tbe same to narrative form under tbe supervision •of tbe clerk.” It was tbe duty of plaintiff, appellant, in stating tbe case on appeal 'to make a concise statement of tbe entire case necessary to present tbe ■assignments of error relied upon. In doing so, tbe appellant should ;set out all necessary and pertinent evidence in narrative form, together with tbe charge of tbe court. This is necessary in order to constitute •a concise and proper statement of a case on appeal. For failure to do •so tbe appellee may except and move before tbe judge, when settling tbe case, to dismiss tbe appeal for failure to serve a proper statement. "When tbe evidence is stated in narrative form by tbe counsel for appellant, it is tbe duty of tbe trial judge, if exception is taken to tbe statement, to supervise and correct it. In tbe record in this case, tbe judge of tbe Superior Court certifies ■over bis own signature as follows: “Parties being unable to agree on case •on áppeal, tbe court settles tbe foregoing as case on appeal. Attorneys waived notice of time and place.” This certificate is binding upon us and we cannot go behind it. From it we must conclude tbat tbe judge ¡supervised tbe settlement of tbe case on appeal and tbat it has received bis approval. Tbe motion to dismiss must be denied. Considering tbe appeal upon tbe assignments of error, we find no •substantial error committed which necessitates another trial. There are no exceptions to tbe evidence. Tbe sixteen exceptions to tbe charge are principally directed to a construction of bis Honor’s •charge and no serious question of law is presented. Tbe charge is set ■out in full and appears to be a clear, fair and full presentation of tbe issues to tbe jury. No error.