Opinion
(December Term, 1829.)
Where a judgment below was rendered upon a point reserved, which did not appear upon the record, the remedy is to grant a new trial.
The jury returned a verdict for the plaintiff, subject to the opinion of the Court upon a point reserved, and judgment was rendered for the defendant by MARTIN, J., from which the plaintiff appealed, but upon the transcript sent to this court the question reserved did not appear. Upon a suggestion of diminution, a certiorari was awarded, to which the clerk of the court below returned that the point reserved did not form a part of the record of the cause in that court.
Gaston, for the plaintiff.
Badger, contra.
FROM SURRY.
From this statement of facts 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 can not be understood, would be to decide in the dark without regard to their rights. To get clear of this difficulty we can take but one course, and that is to grant a new trial; by which means the question may be again made, if those concerned think proper. This has been heretofore done. Hatton v. Dew, 4 N.C. 137.
PER CURIAM. New Trial.
Cited: Brown v. Kyle, 47 N.C. 443.