Opinion
(Filed 7 October, 1902.)
APPEAL — Case on Appeal — Statement of Facts — New Trial.
Where a case on appeal does not contain a sufficient statement of facts to enable the Supreme Court to make a decision, it will be remanded for a new trial.
ACTION by William Arnold and others against C. Hardy and wife, heard by Judge W. S. O'B. Robinson and a jury, at November Term, 1901, of HARNETT. From a judgment for the defendants the plaintiffs appealed.
Murchison Johnson for the plaintiffs.
O. J. Spears and T. M. Argo for the defendants.
For the reasons given in Arnold v. Dennis, at this term of the Court, and also for the additional reason that it does not appear that F. H. Thomas, the devisee, in item 8 of the will (a construction of which seems to be the purpose of the appeal), died without issue, the most material part of the case, this case must go back for a new trial. It is said in the statement of the case that "plaintiffs claim that he died (114) without issue," but surely that must be found as a fact before it can be expected that we should make a decision in the matter. The case was made up by counsel.
New trial.