NOTE. -For former practice on appeal, see Battle's Digest, vol. 2, pp. 1017-1026, and vol. 3, pp. 518, 519.

Exceptions made after verdict.-Exceptions taken after verdict, to issues, to evidence, or to the charge, will not be entertained. Tayloe v. Steamship Co., 88-15.

NOTE. It is otherwise now as to the charge, as exceptions thereto may be made as late as statement by appellant of his case on appeal, but not later. Lowe v. Elliott, 107-718.

Burden upon appellant to show error.-All intendments are taken most strongly against a party alleging error on the record; therefore, where the defendant confessed judgment before a justice on a note given to the plaintiff as administrator for the rent of a house, and then appealed and objected in the superior court that the plaintiff had no right of action: Held, on appeal to the supreme court, the record showing nothing to the contrary, that it must be presumed that the plaintiff's intestate had an estate for years, and not an inheritable estate in the premises. Rush v. Steamboat Co., 67-47.

The burden is upon the appellant to show that the judgment below is in error. Oldham v. Kerchner, 79-106; Utley v. Foy, 70-303.

Where it is sought to enjoin the collection of a judgment on the ground of want of jurisdiction in the court which rendered it, every presumption is in favor of the jurisdiction, and it must be made to appear affirmatively from the record that the court had no jurisdiction. Neville v. Pope, 95-346.

The presumption is in favor of the regularity and correctness of the the proceedings below, and error will not be presumed unless it is assigned and shown. Lyle v. Siler, 103-261; State v. Debnam, 98-712. Immateriality of error complained of. The immateriality of an error, on the trial below, must clearly appear on the face of the record in order to warrant the court in disregarding it. McLenan v. Chisholm, 64-323. The supreme court will not review a ruling of law which does not affect the party, even if erroneous. Butts v. Screws, 95-215; Nissen v. Mining Co., 104-309.

It is incumbent on the appellant to show that, by a reception of immaterial or incompetent evidence, he was probably prejudiced. Glover v. Flowers, 101-134; McGowan v. Railroad, 95-417; Livingston v. Dunlap, 99-268.

Where the jury gave substantial damages, which are affirmed on appeal, it is unnecessary to consider the charge given as to nominal damages. Thompson v. Telegraph Co., 107–449.

Motion to dismiss appeal, when to be made.-A motion to dismiss an appeal for irregularity may be made when the cause is called for trial, though it may have been on docket a previous term and continued for want of time to try it. Hutchison v. Rumfelt, 82-425; Chastain v. Chastain, 87-283.

See Rules of Supreme Court, No. 16, post.

Motion to dismiss will be refused, when.-A motion to dismiss an appeal because it does not appear that a case had been made and served as prescribed by the Code of Civil Procedure will not be granted when opposing counsel states on oath in this court that all the requirements of the Code were complied with in the court below. Kirk v. Barnhart, 74-653.

A defect in the name of a defendant in the summons is cured by a judgment by default rendered against him. When such judgment is

taken before a justice of the peace and carried by appeal to the superior court, it is the duty of the court to make the proper amendment and proceed with the trial upon the merits. But when the defendant in such case took an appeal from the justice, and failed, for seven terms, to make any motion to dismiss, he thereby waived the irregularity complained of. Clawson v. Wolfe, 77-100.

An appeal will not be dismissed if the record or "the case" clearly discloses the grounds of appeal, though not very formally made. Allen v. Griffin, 98-120.

Appeal dismissed ex mero motu.-The supreme court will examine the entire record upon an appeal, and if it appears therefrom that no sufficient cause of action is stated, it will, ex mero motu, dismiss the appeal. Knowles v. Railroad, 102-59; Peacock v. Stott, 104-154; Norris v. McLam, 104-159; Hagins v. Railroad, 106-537.

Where, upon the inspection of the whole record, it appears that the judgment was unwarranted upon the facts, the supreme court will, ex mero motu, reverse it. Everett v. Raby, 104-479.

Amendments in appellate court.-In cases of appeal from the probate court to the superior court, the judge has the same right to allow amendments as if the case had been constituted in his court. Amendments which promote justice and a trial on the merits, are, in general, liberally allowed; but, in all cases, the application should be made in due time, or sufficient reason be shown for the delay. Sudderth v. McCombs, 67– 353.

Where it is agreed in the court below, that a complaint may be amended so as to supply necessary averments, but it is not done, the supreme court will allow the amendment to be filed in that court. Hines v. Railroad, 95-434.

Where an action on an administration bond was brought in the name of the administrator de bonis non, and not in that of the state on his relation, an amendment making the proper plaintiff will be allowed in the supreme court, without terms, although the objection was not taken below, and was made for the first time on appeal. Grant v. Rogers, 94-755.

A motion to strike out a counterclaim, because the court did not have jurisdiction of it, can be allowed when made for the first time in the supreme court. McKinnon v. Morrison, 104-354.

See 273, ante, The Code, 965, and Rule 26 of the Supreme Court.

Issues of fact reviewed. The supreme court can only review and pass on issues of fact in certain cases, and then only when the evidence on which the finding in the court below was based, is set out fully and at large in the record. Runnion v. Ramsay, 93-410; Worthy v. Shields, 90-192; Coates v. Wilkes, 92-376; Young v. Rollins, 90-125.

Where pleadings are confused.-When pleadings are so confused and vague as to leave it in doubt what the parties are contending over, the supreme court will not take cognizance of the cause on appeal. Woodlief v. Merritt, 96-226.

Appeal when no judgment rendered. Although an appeal before any judgment is rendered below is premature, and will be dismissed, yet, when it appears that a decision of the supreme court of the point intended to be raised by the appeal will practically terminate the action, the opinion of the court may be given. State v, Nash, 97-514; Railroad v. Reidsville, 101-404; State v. Divine, 98-778; Thornton v. Lambeth, 103-86.

Stipulations as to other cases.-The supreme court will not take notice of and act upon a stipulation as to other cases turning upon the principles applicable to the case before it. Rawlings v. Hunt, 90-270.

Effect of appeal. An appeal arrests all proceedings in the court below upon the judgment appealed from. Skinner v. Bland, 87-168; Isler v. Brown, 69-125.

But does not withdraw from it authority to order proper security to be given for the safe keeping or investment of a fund ordered by the judg ment to be distributed. The supreme court will not entertain an application to make disposition of the fund by investment pending the appeal. Hinson v. Adrian, 91-372.

While a supreme court may take notice of an appeal as soon as it is perfected in the court below, for the purpose of bringing it up, it is not properly pending in the supreme court. until it has been docketed. Avery v. Pritchard, 93-266.

An appeal does not take the case beyond the control of the superior court, until it is perfected. Coates v. Wilkes, 94-174.

It is where the judgment is final and disposes of the entire controversy, that the appeal, when properly perfected, vacates the judgment and the whole cause is transferred to the appellate court. Even then, it for some purposes, be proceeded with in the lower court. Green v. Griffin, 95-50.

may,

NOTE. The judgment is not vacated now, but merely suspended by the appeal. Acts 1887, ch. 192.

As a general rule, the supreme court, in the exercise of its appellate functions, cannot acquire jurisdiction of a cause and the parties thereto until a proper transcript has been brought up and duly docketed therein. Walton v. McKesson, 101-428.

After the lapse of time within which the appellant should docket his appeal in the supreme court, if he fails to do so, the superior court may, on proper notice, adjudge the appeal abandoned, and proceed as if it had not been taken. Avery v. Pritchard, 93-266, approved; Fisher v. Mining Co., 105-123.

Sec. 551. Clerk to make copy of judgment-roll and send to clerk of supreme court. C. C. P., s. 302. 1889, c. 135. case settled, as

The clerk, on receiving a copy of the required in the preceding section, shall make a copy of the judgment-roll and of the case, and, within twenty days, transmit the same, duly certified, to the clerk of the supreme court. Clerks of the superior court, except in cases where parties are allowed to appeal without giving an undertaking on appeal, shall not be required to make the copy of the record in the case for the supreme court until the appellant shall have given the undertaking on appeal or made the deposit required.

NOTE. The last paragraph was added by ch. 135, acts 1889.

Duty of clerk to send up transcript.—If a clerk fails to send up the transcript in time, a certiorari lies. Howerton v. Henderson, 86-718.

The duties prescribed for the clerk of the superior court in respect to making and transmitting transcripts of records upon appeals are ministerial, and he has no authority to pass upon the question whether the appeal has been perfected. Russell v. Davis, 99-115.

It is the duty of the clerk, within twenty days after the case on appeal is filed in his office, to send up a transcript to the supreme court (The Code, 551), but not unless his fees are paid by the appellant. Semble, that leave to appeal in forma pauperis does not excuse appellant from paying costs of transcript. Bailey v. Brown, 105-127; Andrews v. Whisnant, 83-446.

See Rules 11 and 12 of the Superior Courts, post.

Duty of appellant.-It is the duty of the appellant, and not of the clerk, to have the record sent to the supreme court. So, where the case on appeal was filed in the office of the clerk of the superior court a short time before the term of the supreme court to which it should have been brought expired, but the transcript was not docketed until during the next term, the appeal was dismissed, although the appellant had applied for a certiorari at the term at which his appeal should have been docketed. Pittman v. Kimberly, 92-562.

Before the supreme court will entertain an appeal, the appellant must cause to be properly filed and docketed therein a duly certified transcript of the record of the action in the court where the judgment sought to be reviewed was rendered. This transcript must show that the court from which the appeal was taken was lawfully organized and held, and all the proceedings had in the action arranged in an orderly manner. State v. Preston, 104-733.

Transcript made out by directions of appellant. It is the right and duty of an appellant, subject to the provisions of The Code, to direct what part of the record shall be sent up. Only so much should be sent up as will show that there was a case duly constituted in court, and the verdict, judgment and such portions of the proceedings, evidences and instructions of the judge as will enable the court to pass on the exceptions. Sudderth v. McCombs, 67-353; Bryan v. Moring, 99–16.

It is the duty of the appellant to have so much of the record sent up as may be necessary to present clearly the matters which he desires to have reviewed, and he cannot take advantage of any defect in the transcript for failure to set out the case intelligibly. Smith v. Fite, 98–517.

Transcript delayed in transit.—Where the transcript of the record was deposited in the post-office in ample time to have reached the supreme court before entering on the call of the calendar of the district to which the case belonged, but, by some delay in the mails, did not reach its destination until after the time for docketing: Held, that the excuse was reasonable, and the appeal would not be dismissed. Walker v. Scott, 104-481.

Two transcripts sent up, when.- When both parties appeal, there are two cases constituted in the supreme court, and two complete transcripts must be made out and transmitted by the clerk. Morrison v. Cornelius, 63-346; Perry v. Adams, 96–347; Jones v. Hoggard, 107–349.

If transcript imperfect.-When the record of a case brought upon appeal to the supreme court is imperfect, the case will be remanded to the court below. Bradley v. Jones, 76-204; Gordon v. Sanderson, 83-1; Markham v. Hicks, 90-1; Bethea v. Byrd, 93–141.

When the transcript fails to show that the cause was properly constituted below, the cause will be remanded. Bradley v. Jones, 76-204; Markham v. Hicks, 90-1.

An appeal to the supreme court will be dismissed when the transcript of the record fails to show that a court was held, or that a grand jury presented the indictment, and when it appears from the case on appeal that the grounds on which the defendant appealed are frivolous. State v. McDowell, 93-541; State v. Johnston, 93-559.

When the transcript does not show that any court was held, or that any judge was present or gave judgment, it is so defective that the supreme court has no jurisdiction to act upon it. Broadfoot v. McKeithan, 92-561.

If transcript is a set of loose, disconnected papers, the case will be remanded. State v. Jones, 82-691; State v. Guilford, 49-83; Goff v. Pope, 82-696.

See cases cited under the preceding section-subheads, "What transcript should contain," and "If transcript defective."

Recital in transcript.-Where the record recites that a regular term of a superior court was opened and held Wednesday instead of Monday, of the week fixed by the statute, it will be presumed that the sheriff had duly opened the court and adjourned it from day to day, as provided in The Code, 926. State v. Weaver, 104-758.

Conflict between record and statement of case. -When the "statement of the case," or any part thereof, on an appeal to the supreme court, conflicts with the record proper, the latter must prevail, because it imports absolute verity. The "statement of the case" is not a part of the record proper. Farmer v. Willard, 75-401; State v. Keener, 80-472; Adrian v. Shaw, 84-832; McCandless v. Flinchum, 98-358; State v. Carlton, 107-956; McNeill v. Lawton, 97-16.

Form of transcript recommended by the court. It is recommended that the transcript of record, on appeal, be drawn in accordance with Eaton's Forms. When the transcript is imperfect the court, of its own motion, may order a certiorari to issue. State v. Butts, 91-524.

Sec. 552. On appeal security must be given or deposit made, unless waived. C. C. P., s. 303. 1871-'2, c. 31, s. 1. 1887, c. 192, s. 1. 1889, c. 135, s. 2.

To render an appeal effectual for any purpose in any civil cause or special proceeding, a written undertaking must be executed on the part of the appellant, with good and sufficient surety, in such sum as may be ordered by the court, not to exceed the sum of two hundred and fifty dollars, to the effect that the appellant will pay all costs which may be awarded against him on the appeal; or such sum as may be ordered by the court must be deposited with the clerk by whom the judgment or order was entered, to abide the event of the appeal; such undertaking or deposit may be waived by a written consent on the part of the respondent.