{
  "id": 11269745,
  "name": "CRESSLER v. ASHEVILLE",
  "name_abbreviation": "Cressler v. Asheville",
  "decision_date": "1905-05-23",
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  "first_page": "482",
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  "last_updated": "2023-07-14T14:59:46.048294+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "CRESSLER v. ASHEVILLE."
    ],
    "opinions": [
      {
        "text": "Clark, C. J.\nThere is no \u201cease agreed\u201d on appeal and none \u201csettled\u201d by the judge, and there being no error upon the face of the record proper the judgment must be affirmed. See numerous cases cited in Clark\u2019s Code (3 Ed.), p. 769. Errors occurring during the trial can be presented only by a \u201ccase on appeal.\u201d It is only when the errors are presented by the record proper, as in an appeal from a judgment upon a demurrer; or upon a case agreed, or judgment granting or refusing an injunction to the bearing beard upon the affidavits, that a case on appeal can be dispensed with. Ibid., p. 770. When there is a defect of jurisdiction, or the complaint fails to state a cause of action, that is a defect upon the face of the record proper of which the court will take notice. Cummings v. Hoffman, 113 N. C., 207; Appomattox v. Buffaloe, 121 N. C., 37.\nBy Chapter 58, Laws 1903, an official stenographer was authorized for Buncombe County, and a clause in sectioh 4 of said Act provides that \u201csuch stenographic notes shall be typewritten and filed with the clerk of said court and shall become a part of the records of the court.\u201d But that did not make them a part of the \u201crecord proper\u201d on appeal, which are the summons, pleadings and judgment; still less did it make such notes a part of the \u201ccase on appeal\u201d which is a statement of the exceptions taken on the trial, and so much only of the evidence, or charge, or other happenings during the trial as is necessary to present intelligibly the exceptions. This court has both by decisions and an express rule (No. 22) endeavored always to avoid the unnecessary expense and oppression of copying into a transcript and printing superfluous matter, that can throw no possible light upon the exceptions taken. Clark\u2019s Code (3 Ed.), and cases cited on p. 918.\nThe entries of continuances, and other docket entries, interlocutory judgments in the cause, and incidental matters, as judgments nisi against witnesses, and many other matters are \u201ca part of the records of the court\u201d in a case, but are not part of the \u201crecord on appeal\u201d unless there is some exception presenting it for review. \u201cThe evidence forms no part of the record.\u201d State v. Godwin, 27 N. C., 401. Prayers for special instruction are no part of the record on appeal. 24 A. & E. Enc. (2nd Ed.), 165. Though the charge of the court when in writing, Code, sec. 414, and prayers for instructions, Code, sec. 415, must be filed and become a \u201cpart of tbe record of the action\u201d just as these stenographer\u2019s notes, they are not a part of the \u201crecord proper;\u201d nor do they become a part of the transcript or record on appeal, except such parts as some exception may require being put into the \u201ccase on appeal\u201d by counsel, if they agree, and if not then by the judge when he \u201csettles\u201d the case on appeal.\nThe \u201ctranscript or record on appeal\u201d consists of the \u201crecord proper,\u201d i. e., summons, pleading and judgment and the \u201ccase on appeal,\u201d which last is the exceptions taken and such of the evidence, charge, prayers and other matters occurring at the trial as are necessary to present the matters excepted to, for review. When the appellant makes out his \u201ccase on appeal,\u201d he should set out only so much of the evidence as is necessary to point his exceptions to evidence, or to point his exceptions to the charge given or prayers refused. The ap-pellee can accept the appellant\u2019s \u201ccase\u201d or if he adds or rejects anything, the judge \u201csettles\u201d the case on appeal.\nWhen there is a nonsuit granted or refused, or a demurrer to the evidence, all the evidence that the appellant deems material should be sent up, but even then immaterial matters, especially evidence as to character and like matters, should be omitted, and indeed all except the evidence claimed to be material. While the stenographer\u2019s notes are filed under the statute, the \u201cease on appeal\u201d must be made up under the provisions of section 550 of The Code, just as in all other cases. The appellant will prepare \u201ca concise statement of the case,\u201d presenting such matters as were excepted to. If there was a nonsuit refused or taken and the parties cannot agree upon the evidence, the judge must settle it. The stenographic notes will be of great weight with the judge, but are not conclusive if he has reason to believe there was error or mistake. The stenographer cannot take the place of the judge who is alone authorized and empowered by the Constitution to try the cause, and who alone (if counsel disagree) can settle for this court what occurred during the trial.\nHere, tbe appellant under an erroneous. opinion as to the function of the stenographer\u2019s notes, served no \u201ccase on appeal\u201d on the other side, but sent up a certified copy of such notes as conclusive both of what the evidence was and as to what exceptions were taken, and as to what rulings were made. This gave neither the appellee nor the judge any opportunity to scrutinize their correctness. Of course, if such notes were conclusive as to the evidence, they should be equally so as to what exceptions were taken and rulings made, and all other matters occurring in the progress of the trial. This would simply depose the judge and place the stenographer in his place for all the purposes of an appeal. All\u2019 the care taken to secure men of high integrity and impartiality to discharge the functions of the important office of judge of the Superior Court, and the retention of the rotating system to prevent unintentional bias by his knowing too intimately parties and causes, become of secondary importance if a stenographer, appointed by the clerk of the court, and not the judge elected by the people of the State is to decide what were the exceptions, rulings, evidence and other incidents of a trial. Now, as always, these matters must be settled by the judge, when counsel disagree. The stenographer\u2019s notes will be a valuable aid to refresh his memory. But the stenographer does not displace the judge in any of his functions.\nNow that stenographers are coming into more general use, it is timely that this court should again repeat what it has heretofore said (Durham v. Railroad, 108 N. C., 399; Mining Co. v. Smelting Co., 119 N. C., 415; Hancock v. Railroad, 124 N. C., 228), that such notes should not be \u201cdumped\u201d into the \u201ccase on appeal.\u201d Whether a part or all the evidence is to come up, it should not be sent up in the form of question and answer (except when on some point it is material), but the appellant should prepare, as the statute requires \u201ca concise statement.\u201d The evidence should be stated in a narrative form. If the evidence as stated by the appellant does not suit the appellee, he can amend it, and the' judge can then settle it, giving of course in the parts necessary to point an exception, as nearly the literal words used as possible, as he may recall them, refreshed by the aid of the stenographic notes. In every trial, of any length, a very large part of the evidence is incidental and throws no possible light upon the matters to be reviewed and should not be sent up in the \u201ccase on appeal.\u201d\nThe increasing disposition, which is fostered by the use of stenographers, to \u201cdump\u201d into the \u201ccase on appeal\u201d all the evidence, however useless, in reviewing the exceptions taken, is an abuse which must be guarded against by the courts and by counsel to prevent the growing and needless expense of appeals, which must work hardship and oppression to many suitors. See Rule 22, 128 N. C., 640, and the decisions under that rule, Clark\u2019s Code (3 Ed.), p. 918.\nThe appellant, by sending up the stenographer\u2019s notes, instead of settling a \u201ccase on appeal\u201d in the mode required by the statute (Code, sec. 550), has failed to present his intended ground for review, i. e., that the judge refused to nonsuit the plaintiff upon the evidence, and an exception to the evidence. This misconception of counsel as to the requirements of the law in making up the '\u201ccase on appeal\u201d does not entitle the appellant to a certiorari, as we have already held at this term in Barber v. Justice. The motion for certiorari must therefore be denied, but we will say, however, that having carefully looked through the record we find no ground either for a motion to nonsuit or for the exception to evidence, had they been properly presented.\nAffirmed.",
        "type": "majority",
        "author": "Clark, C. J."
      }
    ],
    "attorneys": [
      "Locke Craig for the. plaintiff.",
      "Davidson, Bourne & Parker for the defendant."
    ],
    "corrections": "",
    "head_matter": "CRESSLER v. ASHEVILLE.\n(Filed May 23, 1905.)\nAppeal \u2014 Case on Appeal \u2014 Practice\u2014Record Proper \u2014 Stenographer's Notes \u2014 Transcript on Appeal \u2014 Certiorari.\n1. Where there is no \u201cease agreed\u201d oil appeal and none \u201csettled\u201d by the judge, and no error upon the face of the record proper, the judgment must be affirmed.\n2. A \u201ccase on appeal\u201d can be dispensed with only when the errors . are presented by the record proper. Errors occurring during the trial can be presented only by a ease on appeal.\n3. When there is a defect of jurisdiction, or the complaint fails to state a cause of action, that is a defect upon the face of the record proper of'which the court will take notice.\ni. Chapter 58, Laws of 1903, authorizing an official stenographer for Buncombe County, and providing that .the stenographic notes shall be typewritten and filed with the clerk of said court and \u201cshall become a part of the records of the court,\u201d does not make them a part of the \u201crecord proper\u201d on appeal, nor a part of the \u201ccase on appeal.\u201d\n5. The \u201ctranscript or record on appeal\u201d consists of the \u201crecord proper,\u201d i. e., summons, pleadings and judgment and the \u201cease on appeal\u201d which is the exceptions taken and such of the evidence, charge, prayers and other matters occurring at the trial as are necessary to present the matters excepted to, for'review.\n6. When the appellant makes out his \u201cease on appeal\u201d he should set out only so much of the evidence as is necessary to point his exceptions to evidence or to the charge given or prayers refused.\n7. When there is a nonsuit granted or refused or a demurrer to the evidence, all the evidence that the appellant deems material should ho sent up, but immaterial matters should be omitted.\n8. While the stenographer\u2019s notes will have great weight with the judge, they are not conclusive of what the evidence was, or as to what exceptions'were taken, or as to what rulings were' made, and if counsel disagree the judge must settle the case as provided by section 550 of The Code.\n9. The appellant should not \u201cdump\u201d the stenographic notes into the \u201cease on appeal,\u201d but should prepare a concise statement of the evidence in a narrative form.\n10. The mistake of counsel for appellant in sending up a certified copy of the stenographer\u2019s notes instead of settling the case on appeal as required by statute, does not entitle the appellant to a certiorari.\nActxoN by Jane H. Oressler and ber husband against the City of Asheville, heard by Judge M. H. Justice and a jury, at the September Term, 1904, of the Superior Court of BuN-cojibe County. From a judgment for the plaintiff, the defendant appealed.\nLocke Craig for the. plaintiff.\nDavidson, Bourne & Parker for the defendant."
  },
  "file_name": "0482-01",
  "first_page_order": 522,
  "last_page_order": 527
}