Opinion
(February Term, 1884.)
Practice — Affirmation of Judgment.
The judgment of the court below will be affirmed, where there is no case on appeal, and nothing in the record to show an exception taken.
CIVIL ACTION tried at Spring Term, 1883, of ROWAN Superior Court, before Graves, J.
Messrs. McCorkle, Armfield and Kerr Craige, for plaintiff.
No counsel for defendant.
The plaintiff, as revenue collector of the United States, brought this action against the defendant for money collected by him as the deputy collector of the plaintiff, and not paid over.
The defendant sets up a counterclaim as a defense to the action, alleging that by reason of a contract with the plaintiff for additional compensation, made subsequently to his appointment as deputy, the plaintiff became indebted to him in a much larger amount than that claimed by the plaintiff in his complaint.
The matter was referred to a referee to take the account between the parties. The referee reported that in the absence of such a contract as that set up by the defendant, he was indebted to the plaintiff in the amount mentioned in his report; but if, on the other hand, there was such a contract, then the plaintiff was indebted to the defendant in a larger amount than was claimed by the plaintiff against him.
The referee suggested to the court, that whether there was such a contract between the parties as that alleged by the defendant but denied by the plaintiff, was a proper question for a jury. The court being of that opinion, accordingly, at the spring term, 1883, of Rowan superior court, the following issue was submitted to the jury:
"Did the plaintiff and the defendant on or about the 27th day of April, 1872, make a new contract, whereby the plaintiff J. J. Mott agreed to pay the defendant John A. Ramsay, as compensation for his services after that date, the sum of one hundred and fifty dollars per month?" To which the jury responded: "They did not."
There being no exception taken to the report of the referee, judgment was rendered on behalf of the plaintiff for the sum of § 162.11, with interest from the 18th of February, 1874, as reported by the referee. From this judgment the defendant appealed to this court.
The case comes before us on appeal of the defendant without any statement of the "case on appeal," and nothing in the record to point us to any exception to the judgment of the court below. In all such cases it has been the uniform practice of this court to affirm the judgment of the superior court. Swepson v. Summey, 74 N.C. 551; Utley v. Foy, 70 N.C. 303; Turner v. Foard, 83 N.C. 683; State v. Orrell, Busb., 217; Fleming v. Halcomb, 4 Ired., 268.
No error. Affirmed.