Opinion
(February Term, 1895).
Practice — Certiorari — Statement by Trial Judge — Supplying Omission in Testimony.
Where the affidavit in an application for a certiorari showed that the word "not" was omitted in an important part of the testimony and was accompanied by a telegram from the trial judge to the same effect and expressing his readiness to supply the omission, the writ will be granted.
L. C. Caldwell and Burwell, Walker Cansler for plaintiff.
Jones Tillett for defendant.
The case on appeal was settled by the judge. The defendant files an affidavit for certiorari on the ground that the word "not" was by inadvertence left out in an important part of the testimony and appends a telegram from the judge, to that effect, expressing his readiness to make the correction. This complies with the requirements laid down in the authorities. Boyer v. Teague, 106 N.C. 571; Bank v. Bridgers, 114 N.C. 107. That the hearing might not be delayed, an instanter certiorari was ordered to issue and the cause placed at the end of the district to be called in its order on the (655) second call of the docket for the week. Considering the nature of the correction asked, on suggestion from the Court, the argument is proceeded with on the first call, subject to any change which may be made in the record by the return to the certiorari, the decision being withheld till such return is made.
Motion Allowed.
Cited: Cashion v. Tel., 123 N.C. 270; Barber v. Justice, 138 N.C. 23.