Opinion
August Term, 1855.
Where it appears from the record sent to this Court, that on the trial below, a question of law was reserved by the Court, to which the verdict was subject, and that question was decided in favor of the appellee, the verdict set aside and a non-suit ordered, but the Judge fails to state what the question was, there must be a venire de novo.
EJECTMENT tried before his Honor Judge SAUNDERS, at the Fall Term, 1854, of Rowan Superior Court.
Boyden, for the plaintiff.
H.C. Jones, for the defendant.
The record in this case sets forth that the case was submitted to a jury: that the jury found a verdict for the plaintiff and assessed substantial damages; then follows this entry:
"The Court being of opinion with the defendant upon the question of law reserved, directed the verdict to be set aside and a non-suit entered.
"From the above judgment the plaintiff prayed an appeal to the Supreme Court."
No case was sent up by his Honor.
The case of Dunett v. Barksdale, 2 Dev. Rep. 251, to which the plaintiff's counsel has referred us, is a direct authority in favor of the new trial for which he asks in the alternative, provided we do not give him the judgment for which he first moves. That judgment we cannot grant, for the reason assigned by HALL, J., in delivering the opinion of the Court in the above-named case. From the records, says the Judge, "it appears that the rights of the parties litigant depended upon a question reserved; and that question was submitted to this Court for its decision. To decide for either of the parties, when that question cannot be understood, would be to decide in the dark without regard to their rights."
As no statement of the case, or bill of exceptions, accompanies the record proper, the defendant's counsel contends that the judgment of non-suit must be affirmed, upon the ground that every judgment is presumed to be right, unless it is shown to be erroneous, and that nothing appears upon this record to show that it is erroneous; and for this he has cited a great number of cases. Picket v. Picket, 3 Dev. Rep. 6, Harry v. Graham, 1 Dev. Bat. Rep. 76, Thomas v. Alexander, 2 Dev. Bat. Rep. 385, Brooks v. Ross, ibid. 484, Honeycut v. Angel, 4 Dev. Bat. Rep. 308, Stewart v. Garland, 1 Ire. Rep. 470, Fleming v. Halford, 4 Ire. Rep. 268, State v. Gallimore, 7 Ire. Rep. 147, State v. Ray, 10 Ire. Rep. 279, State v. Orrell, Bus. 217, State v. Lankford, ibid. 436.
All these cases, and some others which we have examined, relate to the statement made or signed by the presiding Judge, which is, in our practice, a substitute for a bill of exceptions, wherein is set forth the errors complained of. They proceed upon the ground that it is the duty of the appellant to have his exceptions stated and sent up with the transcript of the record proper, and if there be no such case stated, or bill of exceptions at all, or none which shows that any error has been committed, the judgment will be affirmed. Hence, in the case of Waugh v. Andrews, 2 Ire. Rep. 75, it was held, that where deeds, records, c., were referred to as making a necessary part of the bill of exceptions, it was the duty of the appellant to see that they were sent up, otherwise the judgment, (no other error appearing) would, as a matter of course, be affirmed.
The objection, in the case, now under consideration, differs from all these in this, that it appears upon the record proper, and the question was reserved by the consent of one party as much as that of the other. In this respect, it more nearly resembles the case where the judgment in the Court below is rendered upon a case agreed but defectively stated. Isbell v. Stone, 3 Dev. Rep. 410.
The remedy is to reverse the judgment and award a venire de novo. That must be done in the present case.
PER CURIAM. Venire de novo.