The plaintiff in this Court moves to affirm the judgment below because there is no "case" on appeal and no assignment of error, and it is entitled to this judgment if no errors appear on the face of the record. Clark's Code, p. 582, where many cases are cited.
On examination of the record we find a complaint duly verified and entitled of December Term, 1893, stating a cause of action against all of the defendants, a judgment final against defendants Eller and Roberts, an answer purporting to be the answer of the defendants, which *Page 372 answer sets up a valid defense, if proven, for all of the defendants, to with a total failure of consideration for the note sued upon, and further, a "second defense by way of counterclaim," in which the defendant Black Alleges damage to him by reason of a false warranty by plaintiff. There is also upon the record a notice of appeal by defendants Eller and Roberts in due form, indorsed "service accepted" by plaintiffs attorney. The record also contains copies of entries upon the minute docket: "Thirty days to file answer as to W. E. Weaver. Judgment stricken out as to Black." And entries upon the judgment docket of the judgment against Eller and Roberts and appeal by them. All of the entries appear to have been made at said December Term, 1893, of Buncombe Superior Court.
A judgment of the court is presumed to be correct. Error (593) must be shown or the judgment will be affirmed. But "in every case the 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 thereon." The code, sec. 957. The record shows an answer purporting to be the answer of the defendants and duly verified by one of them and entitled of the return term — the same term at which judgment was rendered. By section 207 of the The Code the defendant has a right to answer at said return term of the summons.
The whole record is presumed to be true; here is a judgment reciting due service on these defendants and a failure to answer by the appellants, and here is an answer purporting to be that of the defendants, which means all of them, at the same term.
In the absence of any statement of the case upon the face of the record the judgment appears to be irregular. It may be that his Honor held that this answer was not the answer of the defendants against whom he rendered judgment. Upon its face it appears to be the answer of all, it is signed by an attorney and is verified by one of the defendants. It seems to be in accordance with law. Upon the face of the record the judgment was not warranted by law and must therefore be
Reversed. *Page 373
(594)