#### A. A. PAUL v. W. T. BURTON et al.

(Filed 15 September, 1920.)

1. Appeal and Error — Instructions—Objections and Exceptions — Records— Statutes.

Errors in tbe charge of tbe court, or in granting or refusing to grant prayers for instruction, shall be deemed excepted to without the filing of any formal objections, if specifically raised and properly presented in the case on appeal, prepared and tendered in apt time; and when exceptions are taken they should be considered and passed upon by the trial court, and upon being overruled, made to appear in the record on the appeal to the Supreme Court. Consolidated Statutes, sees. 643, 641, 640, 590; Rev., 591, 590, 554.

2. Same — Appearance After Verdict — Pleadings—Judgments—Pro • Con-fesso.

Where one of the defendants in an action appears for the first time after a verdict adverse to himself alone, not having filed an answer, and specifically excepts to the charge of the court, he is entitled to have the trial judge pass upon his exceptions, and, upon their being overruled, to have them incorporated in his case on appeal to the Supreme Court, when he has perfected it according to law, and it is reversible error for the trial court to decree that the allegations of the complaint be taken pro eon-fesso against him, and refuse -to consider his exceptions to the charge, and confine him to his exceptions to the overruling his demurrer to the complaint and the overruling of his motion for judgment non obstante vere-dicto.

3. Same — Certiorari—Procedure.

Where the trial court erroneously refuses to consider appellant’s exceptions to the charge; and in refusing to permit them to be incorporated in the case on appeal, a writ of certiorari will issue from the Supreme Court, directing the trial judge to restate the case on appeal so as to set forth these exceptions, and so much of the charge as may be required to show their true significance, and enable the Supreme Court to properly pass on their merits.

Civil ACTION, tried before Granmer, J., and a jury, at May Term, 1920, of Beaufort.

From a perusal of tbe record it appears that plaintiff instituted bis action in said court against tbe National Auction Company, S. A. Eure, and W. T. Burton, trading as Burton Brothers, and filed bis complaint therein duly verified, construed on tbe bearing as setting forth two causes of action against defendants, one for breach of contract, and the second for libel in publishing in tbe papers a repudiation of said contract, said publication alleged to have contained false and defamatory matter concerning plaintiff and bis claims, made thereunder; that defendants Eure and tbe National Auction Company filed verified answer in substantial *46denial of plaintiff’s allegations, and no answer was made by defendant Burton, nor did be appear at tbe bearing till after verdict rendered.

This cause came on for trial at May Term, 1920, and tbe jury rendered tbe following verdict:

“1. Did defendants, Auction Company and Burton, make and enter into a contract witb plaintiff, as alleged in tbe complaint? Answer: ‘Yes.’

“2. If so, was plaintiff ready, able, and willing to perform tbe same on bis part? Answer: ‘Yes.’

“3. Did said defendants wrongfully breach said contract, as alleged? Answer: ‘Yes.’

“4. If so, wbat damage bas plaintiff sustained by reason of tbe breach thereof ? Answer: ‘None.’

“5. Was tbe publication of tbe notice in tbe Daily News of 31 May, 191?, wrongful and unlawful on tbe part of tbe defendant Burton, and did plaintiff request said defendant before its publication not to publish tbe same? Answer: ‘Yes.’

“6. If so, wbat damage bas plaintiff sustained by reason of tbe said publication by said W. T. Burton, trading as Burton Brothers? Answer : ‘$2,500.’ ”

There was judgment on tbe verdict in terms as follows:

“This cause coming on to be beard at tbe above term of court before bis Honor, E. H. Cranmer, judge presiding, and it appearing to tbe court that tbe defendant W. T. Burton, trading as Burton Brothers Company, bas entered no appearance and filed no answer, and tbe matter having been submitted to tbe jury, and tbe jury having answered tbe issues as set out in tbe record:

“It is now, on motion of Small, MacLean, Bragaw & Rodman, J. D. Paul, and Ward & Grimes ordered, adjudged, and decreed that tbe allegations of tbe complaint be taken pro confesso as against said Burton, and that tbe plaintiff, A. A. Paul, recover of tbe defendant, W. T. Burton, tbe sum of twenty-five hundred dollars ($2,500), and tbe costs of the action, to be taxed by tbe clerk.”

It further appears in tbe case on appeal that while tbe defendant Burton was not present at tbe trial before tbe jury, be did appear after verdict rendered, and, through bis counsel, moved to set tbe same aside “for mistake, surprise, and excusable neglect,” Cons. St., sec. 600, Rev., sec. 513, and for other reasons, excepted to tbe order denying bis motion, and to tbe judgment, appealed therefrom in open court, and in bis case on appeal, tendered in apt time, set forth and urged for error certain exceptions to tbe charge of tbe court. These proposed exceptions tbe court declined to consider, and in tbe case on appeal restricted appellant to two positions:

*471. A demurrer ore terms to tbe complaint on tbe grounds tbat it did not state a cause of action.

2. A motion for judgment non obstante veredicto.

These positions having been overruled, and judgment entered as stated, defendant Burton appealed, assigning errors.

Ward & Grimes, John D. Paul and Small, MacLean, Bragaw & Rodman for plaintiff.

Skinner & Whedbee, W. A. Lucas, and Wiley G. Rodman for defendant.

HoKE, J.

Without adverting to the various objections presented in the record, except to say that the publication complained of seems to be of a libelous tenor, the statutes more directly appertaining to the principal exception, and authoritative decisions construing the same, are to the effect that errors in the charge, or in granting or refusing to grant prayers for instructions, shall be deemed excepted to “without the filing of any formal objections,” and, if specifically raised and properly presented in the case on appeal, prepared and tendered in apt time, they shall be considered and passed upon by the trial court, and made to appear in the record. This was held in the case of Lowe v. Elliott, 107 N. C., 718, where the positions applicable are stated as follows:

> “(1) Exceptions as to all matters other than the charge must be taken at the time.

> “(2) Exceptions to the charge, and for refusing to give special instructions, are in time if taken at or before the stating of the case on appeal, though the better practice is to assign all exceptions in making motion for new trial.

> “(3) The appellant is entitled to have his assignments of error to the charge, and for refusing or granting special instructions, if set out by him in his statement of case on appeal, incorporated by the judge in the case settled. If they are omitted, certiorari will lie.”

This well considered decision has been again and again approved as the correct interpretation of the statutes applicable and controlling on the subject. Cameron v. Power Co., 137 N. C., 99; National Bank v. Sumner, 119 N. C., 591; Bernhardt v. Brown, 118 N. C., 701, etc.; Consolidated Statutes, secs. 643, 641, 640, 590; Revisal 1905, secs. 591, 590, 554.

In Cameron’s case, speaking to the question, the Court said: “The assignment of errors must appear in the case, and appear, too, as the appellant frames it, otherwise he may be deprived of a most important and valuable right given by, tbe statute. The judge may say what the evidence was, and also what was the charge when it was not in writing, *48but be may not say bow tbe alleged errors in it shall be excepted to or assigned by tbe appellant, nor can be omit tbe assignment of errors from tbe case because be .does not believe it was properly made or does not conform to tbe rulings upon tbe prayers for instructions or to tbe charge, provided it was set out in tbe case on appeal as tendered by tbe appellant. As to all matters concerning which tbe judge’s statement is conclusive upon us we will not grant a certiorari for tbe purpose of having tbe case amended, unless it appears that an error or mistake has inadvertently been committed by tbe judge, and it appears further that there are reasonable grounds to believe that tbe judge will correct tbe case if be is afforded an opportunity to do so. Porter v. R. R., 97 N. C., 63; Clark’s Code (3 ed.), pp. 935, 936. But in respect to an assignment of errors made in tbe appellant’s case, be is entitled to have it stated in tbe case on appeal settled by a judge as matter of right.”

There was .error, therefore, to appellant’s prejudice in declining to consider bis exceptions to tbe charge, and tbe writ of certiorari will issue, directing tbe trial judge to restate tbe case on appeal so as to s.et forth, in addition, these exceptions, and so much of tbe charge and evidence pertinent as may be required to show their true significance, and enable tbe court to properly pass on their merits.

Error.