(DEFENDANT'S APPEAL.) The first exception is without merit. Though no counterclaim is pleaded, the court can order a reply to be filed to matters of defense set up in the answer (Code, secs. 248, 277; Fitzgerald v. Shelton, 95 N.C. 519), and, of course, it can permit such reply to be filed as a matter of discretion.
The issues were those which properly arose upon the pleadings, and the second exception cannot be sustained.
The third exception is for refusal to grant several prayers for instructions that "there was no evidence" and that "according to the evidence," and the like. The defendant as appellant made out its statement of the "case on appeal," and the appellee accepted the same. When this is the fact the judge has nothing to do with the settling of the case on appeal. In the case made out by the appellant there is nothing whatever by which this Court can see that there was error in refusing the instructions asked. It is not sufficient that error is alleged, but it must appear that there was error, and, unless the record or the case on appeal sets out matter from which the Appellate Court can see that there was error, the presumption in favor of the correctness of the proceeding below universally obtains. Had the "case on appeal" set out the evidence on which the prayers "according to the evidence, etc.," were predicated, the court could have passed upon the question whether there was error or not, but the appellant has not seen fit to put the evidence in the case, and we cannot presume error in the judge. Had the appellant, in making up its statement of the case as to the matters on which it asked the court to charge that "there was no evidence," set out (532) *Page 396 all the evidence in the case, or even upon that point, or stated, as a fact, that there was no evidence on that point, and this had been accepted by the appellee or, on disagreement, been so stated by the judge, we could see whether or not there was insufficient evidence or no evidence. But, in the absence of the evidence or a statement that there was none, we cannot presume there was none and that the judge charged the jury on a point when there was no evidence to support it. The presumption is the other way, unless it is affirmatively made to appear that there was no evidence. This has been held upon a very similar state of facts in S. v. Wilson, at this term, and in many previous cases, among them Williams v. Whiting,92 N.C. 683, and Walker v. Scott, 106 N.C. 56.
In the absence of the evidence itself or of a statement that there was no evidence, a prayer to instruct the jury that there is none is without anything to support it in this Court, and the judge below is presumed to have charged the jury correctly upon the evidence which was before him, but which the appellant did not think it worth his while to send up to us. If he had done so we might still have approved his Honor's ruling. Certainly, the appellant is in no better condition by failing to do so, and it was not incumbent upon the appellee to fill up a hiatus in the appellant's case. If the appellant had any ground to complain of the charge it has itself to blame for not presenting the case with the care an appeal is entitled to receive.
No error.
Cited: Hart v. Cannon, 133 N.C. 14.
(533)