Lindsay v. . Brawley

Seawell, J. The plaintiff complains tbat in settling the case on appeal tbe judge improperly excluded therefrom certain matters occurring on the trial which he is entitled to have included for the purpose of this review, and addresses an exception to that exclusion. G. S., 1-284, requires the Clerk of the Superior Court to prepare a transcript of the judgment roll or record proper which is sent up on appeal. Under G. S., 1-283, the judge is given power to settle the case on appeal. Ordinarily, the only supervision which may be exercised over the judge charged with this duty is to see that it is performed. S. v. Gooch, 94 N. C., 982. Errors and omissions in the case on appeal are corrected upon certiorari and cannot be brought up on exception taken at the time the case is settled. Appellant has made no motion for certiorari, and the matter is not reviewable on the present record. We have carefully examined the report of the Referee, his findings of fact and conclusions of law. The exceptions raised by the plaintiff with respect to the findings of fact and to the approval thereof by the presiding judge raise the question here whether there was any evidence to support them. We find that there is such evidence, and the findings and approval thereof are ordinarily conclusive upon us in appellate review, although the court below had more extensive powers. G. S., 1-194; Boyle v. Stallings, 140 N. C., 524, 51 S. E., 346; Cummings v. Swepson, 124 N. C., 579, 32 S. E., 966; Dent v. English Mica Co., 212 N. C., 241, 193 S. E., 165; Wallace v. Benner, 200 N. C., 124, 156 S. E., 795; Thigpen v. Trust Co., 203 N. C., 291, 165 S. E., 720. Rut whenever it becomes apparent that the Referee, in weighing conflicting evidence bearing on the subject of the finding, erroneously shifted the burden of proof to the prejudice of either party, and the finding and conclusion of law is approved by the trial court, the finding will be reviewed on appeal as a matter involving a question of law and legal inference. Reference to the above statement will show that the finding of fact by the Referee in the respect mentioned was based upon the erroneous view that the burden was upon the plaintiff to show that at the conference mentioned there had been no settlement between the parties; whereas, such settlement was a matter of defense, and the burden of proof rested upon the defendants. The comprehensive approval of the findings of fact and conclusions of law by the trial judge is affected with the same error. There was no trial by jury, of course, but the Referee has laid bare the manner in which he arrived at his finding, and it may have seriously prejudiced the rights of plaintiff. *472 For this error tbe cause must be remanded to tbe Superior Court for appropriate proceedings. It is so ordered. Error and remanded.