#### A. G. THORNTON and wife v. A. G. BRADY.

*Appeal*— Practice—Error *Apparent. in Record*— Assignment *of Error.*

The statute (§ 957 of *The Code)*requiring the Supreme Court to render such judgment, &c., as shall appear to be proper from *inspection of the whole record,*has reference to the essential parts of the record, such as the pleadings, verdict and judgment, in which, if there be error, the Court will correct it, though it be not assigned. *39If tliere be error in such matters as are not necessarily of the record, the Court will not see and correct it, unless it be assigned. (Report of *State y. Reynolds,*95 N. C., 616, adverted to as incorrect and misleading).

Civil ACTION, heard before Clark, /., at Spring Term, 1887, of the Superior Court of Cumberland County.

Judgment was rendered in favor of defendant and the plaintiffs appealed.

*Mr. N. S. Ray,*for the plaintiffs.

Mr. *D. Rose,*for the defendant.

Merrimon, J.

In this case, no exception or assignment of error appears, in terms or by implication, in the case stated or settled on appeal, or in the record proper. This is conceded, but on the argument the counsel for the appellants insisted that inasmuch as the statute *(The Code,*§ 957,) provides that, “ In every case the Court (this Court) may render such sentence, judgment and decree, as, on inspection of the whole record, it shall appear to them ought, in law, to be rendered therein,” &e., it becomes the duty of this Court to scrutinize all such matters and things as may occur and be noted on the record in the course of the action, including the trial, whether error be assigned or not. This is a misinterpretation of the statutory provision cited. It refers only to such constituent matters of the action as must necessarily go upon and constitute the record of it, and which the Court sees and must take notice of, such as the pleadings, the verdict, and the judgment; it does not refer to such matters and things as are of, but incident to the action, and do not necessarily go upon the record, such as the rulings of the Court upon questions arising upon motions, evidence, its in-* structions to the jury, and the like. Such matters as those last mentioned, do not go upon and become part of the record, unless the correctness of the decisions of the Court, *40upon them is questioned, in which case, they are made part of the record, to the- end, the complaining party may enter his objections, and the grounds thereof; and assign error. Such decisions of the Court are presumed to be correct and acceptable to the parties, in the absence of objections so made. But as to the essential parts of the record, as pointed out above, the Court will, *ex mero motu,*take notice of errors apparent in it, correct them and enter such judgment as in law ought to be rendered The reason is, that it is the first and imperative duty of the Court, to render only such judgment as the law, upon the facts ascertained, allows and will sanction. If what it must necessarily see in the record of the action is erroneous, it will correct the error, although it be not assigned. If there be error in such' matters as are not necessarily of the record, it cannot see and correct the same, unless and until it shall be assigned. Hence Chief Justice Ruffin said in *Gant*v. *Hunsucker,*12 Ired., 254: *“*But though that be the opinion of the Court, it is not now open to the plaintiff to complain of that error, because he took no exception to it on the trial. For the best reasons it is entirely settled, that the Court can take no notice of an error not apparent in the record, that is, in the pleadings, verdict, or judgment, unless the appellant excepted to it at the trial. Besides the presumption, that every thing was done right until the contrary be alleged, there is another, that, for purposes of his own, the party assented to or acquiesced in every opinion of the Court to which he did not at the time except.” *King*v. *King,*4 Dev. & Bat., 164.

Error, as has been decided in many cases, must be assigned in the case stated, or settled on appeal, or in the record of the cause, or proceedings in the action, unless the errror is apparent in the essential parts of the record, as pointed out above.

The counsel of the appellant cited *State*v. *Reynolds,*95 N. C., 616, as a case in which no error was assigned as to *41the instructions given by the Court to the jury, but nevertheless, this Court examined the instructions sent up, and discovered and corrected error therein. The report of the case in this respect is misleading. It is said in the report, that *“*the case on appeal did not show that any exception was made to the charge below.” This is a mistake. On reference to the record, we find that Justice Ashe, who delivered the opinion, did not say, in his statement of the case, that error was not assigned, and it also appears that exception to the charge was expressly taken.

In this case, error in the record is not apparent, nor is error assigned in the record, or in a case stated or settled on appeal. The judgment must therefore be affirmed.

Judgment affirmed.