Opinion
(August Term, 1860.)
This court cannot proceed to judgment without an inspection of the whole record. Where, therefore, in a proceeding to recover damages for ponding water back on plaintiff's land, by agreement of counsel only so much of the record was sent up as was "necessary to present the points in issue," this Court refused to give judgment.
PETITION to recover damages for overflowing plaintiff's land, tried before Heath, J., at last term of CATAWBA.
Boyden and Bynum for plaintiff.
Thompson, Lander, Avery, and McCorkle for defendant.
The jury gave for several successive years less than $5, Whereupon the judge ordered that no more costs than damages should be recovered, from which the plaintiff appealed.
In the court below it was agreed by the counsel on both sides that "the clerk need not copy the whole record in this case, but only enough to present the points in issue," and he did not make a full record, but only sent a representation of the substance of the petition, etc., and a brief history of the trial.
There is no error in the order made in the court below on the question of costs. The provision of the statute is in express terms, and the order is in pursuance thereto. So, we presume, the appeal was taken in this case, as has been done in many (623) other cases of appeal, to the Morganton term, which is only held once a year, merely for the sake of delay.
The final judgment which this Court is authorized to render in "civil cases" is to be made "on inspection of the whole record." The transcript filed does not purport to set out the whole record, "but only enough to present the points in issue."
This shorthand way of getting the opinion of the Supreme Court on a point of law, without much expense to either party, cannot be tolerated; and as the whole record is not before us, we can give no judgment until a full exemplification of the record is filed.
PER CURIAM. Affirmed.