Clark v. Machine Works

Full title: DAVID CLARK ET AL. v. SACO-PETTEE MACHINE WORKS ET AL.; DAVID CLARK ET AL…

Court: Supreme Court of North Carolina

Date published: Dec 1, 1908

63 S.E. 153 (N.C. 1908)

150 N.C. 88

Opinion

(Filed 22 December, 1908.)

Appeal and Error — Certiorari — Case as Settled.

When it appears, on examination of the transcript on appeal, that certain papers were sent up by the clerk as a part thereof which had been excluded by the order of the trial judge, and that others were omitted which the judge had ordered to be included, the record will be remanded, on motion, to the clerk, with direction to correct the transcript in accordance with the order of the judge.

W. J. Adams and Womack Pace for plaintiffs.

A. A. Seawell and K. R. Hoyle for defendants.

CLARK, C. J., did not sit in this case.

PER CURIAM:

This was a motion by the plaintiffs for a certiorari, directed to the clerk of the Superior Court of LEE to certify the transcript of the record in accordance with the order of Long, J. (89) The motion was made, upon notice, and argued before us. Upon a careful inspection of the record, we find that Judge Long directed that the following papers comprise the transcript, to wit, "The summons, the complaint, the proper records, above set out, including the bond, notice of appeal, waiver of notice and this statement of the case on appeal, will constitute the case on appeal to the Supreme Court."

We find upon examining the transcript that certain other papers which his Honor directed to be stricken from the file in the cause have been inadvertently included. The clerk, in sending up the transcript, should be guided solely by the order of the judge and send no other papers than those directed by him. The record will be remanded to the clerk, with directions to certify to this Court the transcript in accordance with this order.

The plaintiffs further move for a certiorari directing the clerk to send up certain affidavits which were used on the hearing before the judge. It appears that these affidavits are in the record and were used in the argument of this case and of No. 289. The clerk of the Superior Court of LEE will make copies of these affidavits and attach to the transcript in both appeals. The same order is made in No. 289. This order is made without prejudice to defendants' right to make such motions on the record, when sent up, as they may be advised.

Motion allowed.

Cited: S. c., post, 375.

(90)