Opinion
(Filed 7 June, 1901.)
NEW TRIAL — Unintelligible Record — Appeal — Supreme Court.
Where, in the case on appeal as made up by the trial judge, there is confusion in the arrangement of the evidence, several deeds and papers of importance lacking, and some inconsistency in the rulings of the court, a new trial will be ordered.
ACTION by G. W. Vanderbilt and others against R. J. Pickelsimer and others, heard by Judge O. H. Allen, and a jury, at Fall Term, 1900, of TRANSYLVANIA. From a judgment for the plaintiffs, the defendants appealed.
(557)
Merrimon Merrimon, for the plaintiffs.
George A. Shuford, for the defendants.
The plaintiff undertook to show title in himself to the tract of land described in the complaint, not by proving title out of the State by grant and mesne conveyance to himself, but by showing that he and the defendant each claimed the land from a common source. Owing to the confusion in the arrangement of the evidence, the absence of several deeds and papers which are of importance, and some inconsistency in his Honor's rulings, we are not prepared to say that the plaintiff made out his claim, and we think the case ought to go back for a new trial.
It must be said that his Honor, in making up the case on appeal (counsel having disagreed), was without his notes of the trial, or other papers, and without the assistance of counsel, who were notified of the time and place, but did not attend. Without fault on his part, months elapsed after the trial and before the case was made up. He states all these matters and concludes by saying: "I have, after the lapse of so long a time, after the hearing of the case under the circumstances, labored under much difficulty in preparing a statement which is not satisfactory."
New trial.
(558)