Cameron v. . Power Co.

This is an application by the plaintiff (appellant) for acertiorari. It is alleged in the petition that plaintiff served on the defendant a case on appeal and defendant filed a counter-case. That the judge who presided at the trial was requested to name a time and place for settling the case, and he appointed as the place a town which is not in the Thirteenth Judicial District and is at a great distance from the place of trial. The plaintiff further alleges that in the case on appeal as tendered by its counsel there were certain exceptions to the charge, and it complains that those exceptions were omitted by (100) the judge in his statement of the case by inadvertence. It is also alleged that some of the exceptions contained recitals of instructions given by the court in its charge to the jury which are at variance with the charge set out in the case as settled and signed by the trial judge.

The statement of the judge in the case on appeal as to what occurred on the trial must be accepted in this Court as importing verity. We always take it as absolutely true. S. v. Reid, 18 N.C. 377; 28 Am. Dec., 527; S. v. Gooch, 94 N.C. 982. If there is any exception to this rule it has not yet been presented in any case which has come to this Court, though it must be true that if the case is tried and the exceptions are noted during the course of the trial, in accordance with the provisions of The Code, sec. 412 (2), the case will be heard here upon the exceptions as thus settled, for the statute virtually so directs. The Code, sec. 550. But the rule as first above stated does not extend to exceptions taken to the refusal of the judge to grant a prayer or to the granting of a prayer for instruction, nor to the assignments of error in the charge of the court, which alleged errors, by the express terms of the statute, are deemed to have been duly excepted to. Clark's Code (3 Ed.), sec. 412 (3). It follows from that provision of the law that the formal assignment of errors relating to such matters may be made for the first time in the case on appeal as tendered by the appellant, and it has so been frequently decided by this Court. McKinnon v. Morrison,104 N.C. 354. See, also, Clark's Code (3 Ed.), p. 513, where the cases will be found fully collected and classified. The judge, therefore, has nothing to do with the appellant's assignment of errors, which is solely the act of the appellant and must be treated as his assignment. This being so, it is not, of course, subject to the control or revision of the judge. (101) The assignment of errors must appear in the case, and appear, too, as the appellant frames it, otherwise he may be deprived of a most important and valuable right given by the statute. The judge may say what the evidence was and also what was the charge when it was not in writing, but he may not say how the alleged errors in it shall be excepted to or assigned by the appellant, nor can he omit the assignment of errors from the case because he does not believe it was properly made or does not conform to the rulings upon the prayers for instructions or to the charge, provided it was set out in the case on appeal as tendered by the appellant. As to all matters concerning which the judge's statement is conclusive upon us we will not grant a certiorari for the purpose of having the case amended, unless it appears that an error or mistake has inadvertently been committed by the judge, and it appears further that there are reasonable grounds to believe that the judge will correct the case if he is afforded an opportunity to do so. Porter v. R. R.,97 N.C. 63; Clark's Code (3 Ed.), pp. 935, 936. But in respect to an assignment of errors made in the appellant's case, he is entitled to have it stated in the case on appeal settled by a judge as matter of right. Sometimes he may be put to this disadvantage: If the charge has not been reduced to writing by the judge, either voluntarily, or at the request of one of the parties under section 414 of The Code, and there is a conflict between the charge, or any part of it, as stated by the judge and as recited in the assignment of errors, we must be governed by the judge's statement of it, and the assignment must be disregarded. Walker v. Scott,106 N.C. 56. When the charge is put in writing there should, of course, be no such discrepancy, as the assignment must necessarily be directed to the charge written.

While we decide that the plaintiff upon the foregoing principles is entitled to the writ of certiorari for the purpose of having his exceptions and assignment of errors, so far as they relate to the exceptions, given or refused, made a part of the case, the judge should, as a (102) general rule, have the opportunity of considering the case again with reference to the assignment, so that he may the more intelligently and explicitly state what was actually done and said, having in view the questions intended to be raised by the appellant as they appear from his assignment of errors. This is but fair to the judge and to the appellee, and will certainly conduce to a better understanding of the merits of the case by us; and, besides, it will not take from the appellant any advantage to which he is justly entitled. Counsel should present when the case is finally settled to protect the interest of their clients, unless their presence is waived, and if any change is made in the body of the case the appellant should be permitted to reassign errors so as to conform the assignment to the changes thus made.

The principles we have thus laid down are well supported by Love v.Elliott, 107 N.C. 718, in which the present Chief Justice pointedly states the law upon the subject. That case has since been approved. S. v.Black, 109 N.C. 856, 14 L.R.A., 205; Broadwell v. Ray, 111 N.C. 457;Bernhardt v. Brown, 118 N.C. 700; 36 L.R.A., 402; Bank v. Sumner,119 N.C. 591. See, also, Boyer v. Teague, 106 N.C. 571, and Whitesides v.Williams, 66 N.C. 141.

It is alleged in the petition that the place appointed by the judge for settling the case on appeal was outside the district, and owing to this fact and the great distance from the place of trial to the place so appointed, counsel did not attend. This perhaps is the cause of the defect in the case, as counsel no doubt would have insisted on their right to have the assignment set out in the case if they had been present. The law requires the case to be settled within the judicial district where it was tried (The Code, sec. 550), and this must be done unless this provision is in some way waived, or counsel agree upon some place outside the (103) district. This requirement of the law is mandatory and should be strictly observed when a request to appoint a time and place to settle the case is made (Whitesides v. Williams and Walker v. Scott, supra; S. v.Williams, 108 N.C. 864), and when the judge has not left the district. When he has so left, he may settle the case upon notice without returning to the district. The Code, sec. 550.

The writer of this opinion concurs fully in the views of Justice Douglas who files the concurring opinion, as to the right procedure in correcting cases on appeal by the writ of certiorari, and he also thinks that such rules of the Court only should be adopted as are necessary for the proper and orderly transaction of the business of the Court, and when adopted should be enforced, not harshly or too rigidly, but with due regard to the hearing of cases upon their merits. But he does not think the question is presented by this application, and for that reason it is not decided nor even discussed.

The answer to the petition does not meet its allegations in such a way as should induce us to withhold the writ. Pursuing the course, therefore, suggested in Lowe v. Elliott, supra, a certiorari will issue and the case be remanded so that appellant's exceptions and assignment of errors may be inserted in the case on appeal, and so that the judge may, not resettle the case (Boyer v. Teague, supra), but make such amendments and corrections in the same as he may deem proper.

To that end let a copy of the petition and the original case on appeal, tendered by the appellant and used as an exhibit in this Court, be transmitted to the judge with the writ for his information.

Petition allowed.