Where the right of a party to a recordari, as a substitute for an appeal from a justice's judgment, depends upon the facts proved or admitted before the Judge of the Superior Court, it is his duty to find and state the facts upon which he proceeds to act, and if, upon an appeal to the Supreme Court, such facts do not appear to have been found and stated, that Court must overrule the decision of the Court below, because the Supreme Court cannot try any "issue of fact."
Where, but for errors alleged, the record would sustain the judgment given in the Court below, it must be sustained by the Supreme Court, unless the errors are shown. But the case is otherwise when there is nothing in the record to sustain the judgment of the Court below.
READE, J.
This was an application for a writ of recordari as a substitute for an appeal from a Justice's judgment.
The record shows no evidence, except the complaint and (136) answer, which we suppose were treated as affidavits.
The only question is, whether a writ of recordari ought to have issued. This depends upon the facts. No facts are found by his Honor, and, therefore, we cannot tell whether he decided right or wrong. Nor can we look into the evidence and find the facts; because the Constitution forbids us to try any "issue of fact." As the case is presented to us, it appears, that his Honor granted the writ without finding any fact at all. And, therefore, we are obliged to overrule him.
It was suggested that we ought to presume that his Honor found such a state of facts as would sustain his judgment. If we adopt that rule we would always have to sustain his Honor when he fails to state the facts. And this would make his decision the last resort. It is true that where, but for errors alleged, the record would sustain the Judge, he must be sustained, unless the errors are shown. But here there is nothing to sustain him. His action was arbitrary so far as it appears to us.
As to the necessity for the Judge to state the facts, see Cardwell v. Cardwell, 64 N.C. 621. As to distinction between "questions of fact" and "issues of fact," see Heileg v. Stokes, 63 N.C. 612.
There is error. This will be certified.
Per curiam.
Judgment reversed.
Cited: Perry v. Whitaker, 77 N.C. 104; King v. R. R., 112 N.C. 322; Hunter v. R. R., 161 N.C. 505; Freeman v. Bennett, 249 N.C. 183.
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