Rodman v. . Harvey

MerriiioN, J. (after having stated the ca,se as above). The appellant suggested that the Court should have found the facts of the proceedings, but this suggestion must go for naught, because it is stated in the case settled on appeal that they were admitted. This Court must act upon the case settled. Accepting the facts as they appear, obviously the motion was properly denied. It did not appear probable that the judgment debtor had any property, rights or credits as to wRich a receiver was required. The notes mentioned were not his, but belonged to bis wife. The mere fact that they were made payable to the husband did not make them his, if in fact they were the property of the wife, and that they were, was admitted. The case so states. Cunningham v. Bell, 83 N. C., 328; Williams v. Green, 68 N C., 183. A receiver will not be appointed as of course in such proceedings, but only when it appears probable that one is necessary to do something in respect to the property of the judgment debtor, to the end it may be properly applied to the payment of the judgment of his creditor. Coates v. Wilkes, 92 N. C., 376. At the end of the case settled on appeal appears a “ supplemental statement ” of suggested assignments of error. These we cannot consider, because, although they were brought to the attention of the Court, it declined to make them a part of the case settled for this Court. It was not bound to do so nor to send up a statement thereof. In settling the case as required by the statute (The Code, § 550), the Judge will consider the statement of the case made by the appellant and the specified amendments proposed and objections made thereto by *4 the appellee; but is not bound to accept such statement or the amendments proposed as true, or to make the same a part of the case settled. From them and data and facts within the knowledge of the Judge, he must settle the exceptions and assignments of error. Such settlement imparts absolute verity, while it remains a record, and this Court considers and decides the questions of law presented by it, and none others, except such as may arise upon the face of the record proper. The very purpose of the statute, when the parties differ as to the exceptions and assignments of error, is to require the presiding Judge to determine- — -settle—what they are, with reasonable certainty and fullness. Only the facts necessary to an intelligent understanding of the questions of law intended to be presented should be stated in the proper connection. Of course “ the written instructions signed by the Judge, and written requests for instructions signed by the counsel, and the written exceptions, shall be deemed conclusive as to what such instructions, requests and exceptions were”; because the statute so declares, and these, when they exist, should be made a part of the case settled. They constitute certain evidence. The statement of the case settled should state fairly every question raised by the appellant at the proper time. This the law requires, and otherwise injustice might be done. But, on the other hand, the Judge should not allow exceptions and assignments of error not made in the orderly course of the action. In appeals the rights of the appellee must be observed and protected as well as those of the appellant. State v. Gooch, 94 N. C., 982; Tayloe v. Steamship Co., 88 N. C , 15. Affirmed.