Opinion
(February Term, 1892)
Appeal — Transcript of Record — Judgment, Vacating.
The Supreme Court will not consider an appeal from a motion to set aside the orders, decrees, etc., in an action or special proceeding, for irregularities, unless the transcript contains a record of such action or proceeding; and where it appears that the original record has been lost or destroyed, the cause will be remanded, to the end that the record may be properly supplied.
APPEAL at Spring Term, 1891, of JONES, from McIver, J.
John Devereux, Jr., for plaintiff.
H. R. Kornegay for defendant.
This is a motion made in September, 1888, to set aside, for alleged gross irregularities, the orders and judgments made in 1871 in a special proceeding brought by the plaintiff administrator to obtain license to sell land to make assets to pay debts of his intestate. The transcript of the record is very voluminous and confused. The evidence on which the findings of fact are based is improperly sent up, as there is no exception on the ground there was no evidence to support some finding of fact. In a case like this, this Court cannot review such findings. The evidence sent up is mere redundant matter, serving no purpose here.
It was not brought to our attention on the argument, as it should have been, that the transcript did not contain the record of the special proceeding; it only embraced the record of the motion and proceedings subsequent thereto. It is essential that we have the record before us, in order that we may see and determine what the irregularities are, if there be such. Hence, we directed that a writ of certiorari issue to the clerk of the Superior Court, commanding him to certify (310) the record to us. He has made return of the writ, sending only fragmentary parts of the record, and stating that these were all he could by diligent search find in his office. He failed to send a transcript of the summons, the petition, and the report of sale. Moreover, he did not send up, as he should have done, a copy of the deeds made by the administrator to the purchaser of the land.
We cannot properly decide the case until the record of the special proceeding is before us. To the end that so much of it as is lost or destroyed may be properly supplied, we remand the case. The court below will have authority to supply the necessary record according to law, and to make all appropriate amendments and orders necessary to perfect the appeal. Bethea v. Byrd, 93 N.C. 141. Let the case be
Remanded.
Cited: S. c., 113 N.C. 277; Drewry v. Bank, 173 N.C. 666.
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