Riggan v. . Sledge

'ClabK, J.: The appellant avers in his affidavit an omission of the trial J udge to include in the case settled by him certain evidence deemed material by appellant and further his belief that His Honor will make the correction if given an opportunity. It has been repeatedly held by this Court that the application is insufficient unless it also sets out the ground of such belief that the Court may judge of its reasonableness. Porter v. Railroad, 97 N. C., 63; Lowe v. Elliott, 107 N. C., 718, and other cases cited in Clark’s Code (2nd Ed.) 549. It is usual to append the .Judge’s letter to that effect to the affidavit that the Court may pass upon it. It must also appear that the omission complained of was made by mistake or inadvertence. Bank v. Bridgers, 114 N. C., 107; State v. Sloan, 97 N. C., 107. Nor is a suggestion of this kind sufficient to sustain a motion for a continuance in order that the Judge may be applied to for such letter. The appeal has already been docketed several days and there has certainly been ample time since the “case settled” was accessible to appellant in which to apply to His Honor for such statement in writing. Yigila/ntibus, non dormientibus leges subveniunt. The defendant requested the Judge to charge that if she was ignorant of the contents of the two mortgages and was *93 induced to sign tbe same by the fraud and deceit practiced on her by her husband then said mortgages are void and plaintiff cannot recover possession of the land. This omits any reference to the participation in or knowledge of such alleged fraud and deceit on the part of the plaintiff and was properly refused. The privy examination is properly certified. There is no evidence tending to show that the plaintiff participated in or had notice of any fraud or deceit practiced by the husband, if any there was, but there was evidence to the contrary and also evidence that the mortgages were read over to defendant before being signed by her. Indeed, this being a civil case, upon the evidence His Honor might have directed the jury to return the-verdict on the first issue in favor of the plaintiff as therei was no evidence to the contrary. State v. Riley, 113 N. C., 648; State v. Shule, 32 N. C., 153. Affirmed. Montgomery, J., having been of counsel, did not sit on the hearing of this appeal.