(February Term, 1895).
Practice — Appeal — Case on Appeal — Application to Amend — Affidavit — Mortgage Alleged to Have Been Procured by Fraud — Participation in by Mortgagor.
1. Where an affidavit in an application to this Court for leave to apply to the trial judge to amend the case on appeal by including evidence alleged to have been omitted therefrom, merely states the belief of the appellant that said judge would make the amendment, but does not set out the grounds for such belief, the application will be denied unless it appears that the omission was made by mistake or inadvertence.
2. In such application it is usual to append the letter of the trial judge, showing his willingness to amend the case on appeal.
3. A suggestion that an appellant believes that the trial judge will amend the case is not sufficient to justify a continuance in order that a letter may be procured from the judge, especially when appellant has had ample time to procure it.
4. Where, in an action for the possession of land sold under mortgage and bought by the mortgagee, the defense was that the mortgage was void for the reason that its execution by the owner was procured through the fraud and deceit of her husband, it was not error to refuse to charge that if the defendant was ignorant of the contents of the mortgage, and was induced to sign the same by the fraud and deceit of her husband, then the said mortgage was void, for such instruction omits any reference to the participation in such alleged fraud by the mortgagor.
MONTGOMERY, J., having been of counsel, did not sit on the hearing of this appeal.
ACTION for the recovery of land, tried before Winston, J., and a jury, at Fall Term, 1894, of WARREN.
C. A. Cook for plaintiff. (92)
M. H. Palmer for defendant.
The appellant avers in the affidavit an omission of the trial judge to include in the case settled by him certain evidence deemed material by appellant and further his belief that his Honor will make the correction if given an opportunity.
It has been repeatedly held by this Court that the application is insufficient unless it also sets out the ground of such belief, that the Court may judge of its reasonableness. Porter v. R. R., 97 N.C. 63; Lowe v. Elliott, 107 N.C. 718, and other cases cited in Clark's Code (2d Ed.), 549. It is usual to append the judge's letter to that effect to the affidavit that the Court may pass upon it. It must also appear that the omission complained of was made by mistake or inadvertence. Bank v. Bridgers, 114 N.C. 107; S. v. Sloan, 97 N.C. 107.
Nor is a suggestion of this kind sufficient to sustain a motion for a continuance in order that the judge may be applied to for such letter. The appeal has already been docketed several days and there has certainly been ample time since the "case settled" was accessible to appellant in which to apply to his Honor for such statement in writing. Vigilantibus, non dormientibus leges subveniunt.
The defendant requested the judge to charge that if she was ignorant of the contents of the two mortgages and was induced to sign the same by the fraud and deceit practiced on her by her husband, (93) then said mortages [mortgages] are void and plaintiff cannot recover possession of the land. This omits any reference to the participation in or knowledge of such alleged fraud and deceit on the part of the plaintiff, and was properly refused. The privy examination is properly certified. There is no evidence tending to show that the plaintiff participated in or had notice of any fraud or deceit practiced by the husband, if any there was, but there was evidence to the contrary and also evidence that the mortgages were read over to defendant before being signed by her. Indeed, this being a civil case, upon the evidence his Honor might have directed the jury to return the verdict on the first issue in favor of the plaintiff, as there was no evidence to the contrary. S. v. Riley, 113 N.C. 648; S. v. Shule, 32 N.C. 153.
Cited: Bank v. Ireland, 122 N.C. 575; Benedict v. Jones, 129 N.C. 474; Marsh v. Griffin, 136 N.C. 334; Davis v. Davis, 146 N.C. 165; Calvert v. Alvey, 152 N.C. 613.