Opinion
June Term, 1824.
The want of a declaration, when it appears on the record sent up to this Court, is an error which the Court cannot overlook, nor can it be amended or remedied but by consent.
THE plaintiff, as guardian, brought her action against the defendant on his obligation in NORTHAMPTON court, and there obtained judgment for the principal money, with compound interest. Defendant appealed to the Superior Court, and at the time of trial did not appear either in person or by attorney. A judgment was rendered in the Superior Court for the principal money, with compound interest and 4 per cent additional interest on the judgment below from the rendition of the same until the affirmance thereof in the Superior Court.
On the day after the trial the defendant came into court and in his proper person moved the court for a new trial, upon the ground that he was absent when the suit was tried; but he offered no affidavit. The court advised him to employ an attorney, that his motion might be brought before the court properly. This he refused to do, and the court decided that defendant should take nothing by his motion, whereupon he appealed.
The record in this case did not set forth any declaration.
This is one of those cases in which it does not appear that any statement was intended to have been made by the judge. We must, therefore, look into the record, and seeing there that no declaration has been filed, it is impossible for us to affirm the judgment. It is an error which we cannot overlook or amend in this Court without consent, and the appellant having waived no advantage which the law gives, we must for this cause reverse the judgment.
Cited: Stewart v. Garland, 23 N.C. 472.
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