(February Term, 1896.)
PRACTICE — APPEAL — DISMISSAL FOR FAILURE TO PRINT JUDGMENT — REINSTATEMENT.
Rule of Court No. 28, requiring the judgment to be printed in every appeal, will not be enforced when the record was printed before its adoption, and in a case where the judgment appealed from was simply that plaintiff take nothing by his writ.
MOTION to reinstate appeal, dismissed for failure to print the judgment below as a part of the record.
L. M. Scott and Shaw Scales for plaintiff.
Fuller, Winston Fuller contra.
The appeal was dismissed for a failure on the part of the appellant to comply with Rule 28. The printing (396) was done before the amendment requiring the judgment in all cases to be printed was made the rule. Before the amendment it would not have been necessary to print as a part of the case on appeal a judgment like the one in this case. The rule required the printing "of so much and such parts of the record as may be necessary to a proper understanding of the exceptions and grounds of error assigned." Upon the response of the jury that the plaintiff was not the owner and entitled to the possession of the property claimed in the complaint, there was a simple judgment that the plaintiff take nothing by his writ and be taxed with the costs of the action. To determine the matter raised on the appeal, the inspection of the judgment would not be necessary. In Wiley v. Mining Co., 117 N.C. 489, the judgment was such a one as was required to be printed before Rule 28 was amended. It covered five pages of manuscript, and one of the exceptions of the appellant read: "For that the said report and judgment based thereon do not properly regard the rights of the minority stockholders; for other reasons appearing on the face of said judgment."
For the reasons above set forth, the petition of the appellant in this case to reinstate the appeal is granted.