Conrad v. Conrad, 378

• Decision Date: 27 April 1960
• Docket Number: No. 378,378
• Citation: 113 S.E.2d 912,252 N.C. 412
• Court: North Carolina Supreme Court
• Parties: Beatrice E. CONRAD v. Woodrow W. CONRAD.

Page 912

113 S.E.2d 912

252 N.C. 412

Beatrice E. CONRAD v. Woodrow W. CONRAD.

No. 378

Supreme Court of North Carolina.

April 27, 1960

R. Lewis Alexander, Elkin, and Hudson, Ferrell, Carter, Petree & Stockton, Winston-Salem, for plaintiff appellee.

Eugene H. Phillips and James M. Hayes, Jr., Winston-Salem, for defendant appellant.

RODMAN, Justice.

Before passing on questions presented by the appeal, we must dispose of procedural questions raised by the parties.

To fix the amount which the court should award as alimony pendente lite and for counsel fees, the parties relied on documentary evidence consisting of the complaint, affidavits, and the transcript of the adverse examination of defendant. Based on this evidence the court found that defendant was capable of earning $16,000 per year, and on this finding required defendant to pay plaintiff $600 per month and $1,000 for attorneys' fees.

Upon the rendition of the judgment defendant gave notice of appeal. In his notice he took exceptions to the findings of fact and the judgment based thereon. Each exception was directed to a specific factual conclusion. These exceptions to the findings and to the award are detailed in the appeal entry. Following the exceptions is a list of the papers which should constitute the record on appeal. The appeal so entered was signed by the presiding judge. Following the list of the papers to be sent here, the entry reads: 'a statement of the case on appeal is deemed unnecessary and inappropriate, it being deemed sufficient that defendant deliver to plaintiff's counsel his assignments of error within 20 days hereafter, service thereof being waived.'

The transcript filed here, certified by the clerk of the Superior Court of Forsyth County, contains the papers named in the appeal entered with the exceptions there shown. The transcript does not contain a grouping of the assignments of error as required by Rule 19(3) of this Court.

On 27 October 1959 and within 20 days from the rendition of the judgment and the signing of the appeal entries by the judge, defendant filed with the clerk of the Superior Court of Forsyth County a paper which he designated as 'assignment of error.' It lists as the exceptions on which he relies those shown in the appeal entry signed by the judge and points to the single legal error which he asserts, i. e., insufficiency of the evidence to support the findings and award. It is sufficient to comply with the requirements of our Rule 19(3). This document was not included in the transcript certified by the clerk of the Superior Court which was filed here 16 December 1959. Defendant, suggesting a diminution of the record, caused a certified copy of this paper to be filed here on 15 February.

Plaintiff filed here a motion to dismiss for failure to file with plaintiff within the 20day period assignments of error as directed by Judge Johnston. He also filed with Judge Johnston a motion to dismiss defendant's appeal, asserting that the assignments of error referred to in the appeal entry had not been delivered. Judge Johnston, on conflicting affidavits, found as a fact that the assignment of error had not been delivered, and, acting pursuant to his interpretation of G.S. § 1-287.1, entered an order dismissing the appeal.

The motions and orders indicate the desirability of a statement of the proper procedure to present to this Court errors of law which appellant claims are prejudicial to him.

Error can only be asserted by an exception taken at an appropriate time and in an appropriate manner. Errors based on rulings made during the trial must ordinarily be called to the attention of the court by an objection taken when the ruling is made. G.S. § 1-206. Exceptions to the charge can be taken within the time allowed for the preparation of the case on appeal. G.S. § 1-282.

The case on appeal to be presented to this Court need not contain all of the exceptions taken at the trial, but only such as appear in the case on appeal can be made the basis for appellate relief. Bulman v. Southern Baptist Convention, 248 N.C. 392, 103 S.E.2d 487; In re McWhirter, 248 N.C. 324, 103 S.E.2d 293; Moore v. Crosswell, 240 N.C. 473, 82 S.E.2d 208.

The reason which requires appellant in the case on appeal to assign or designate the exceptions on which he will rely is apparent. Appellee is entitled to know which of the exceptions taken appellant intends to rely on so that there may be included in the record such parts as may be necessary to show that there was in fact no error. Jenkins v. Castelloe, 208 N.C. 406, 181 S.E. 266.

Upon disagreement of counsel the court settles the case on appeal. G.S. § 1-283. The trial judge then has both the power and the duty to exercise supervision to see that the record accurately presents the questions on which this Court is expected to rule. Hoke v. Atlantic Greyhound Corp., 227 N.C. 374, 42 S.E.2d 407; Chozen Confections, Inc. v. Johnson, 220 N.C. 432, 17 S.E.2d 505; Commissioners of Greenville v. Old Dominion Steamship Co., 98 N.C. 163, 3 S.E. 505.

Where appellant has in his case on appeal enumerated the errors on which he expects to rely, he may reduce the number of asserted errors when he groups for our convenience as required by Rule 19(3) the exceptions he expects this Court to consider. State v. Jones, 227 N.C. 94, 40 S.E.2d 700; Jones v. Atlantic Coast Line R. R., 153 N.C. 419, 69 S.E. 427. This grouping of the exceptions assigned as error (sometimes for brevity also called 'assignments of error') should bring together all of the exceptions which present a single question of law. Ellis v. Atlantic Coast Line R. R., 241 N.C. 747, 86 S.E.2d 406. The exceptions so grouped must be set out in detail and must refer to the page of the record where each exception is to be found. Hunt v. Davis, 248 N.C. 69, 102 S.E.2d 405; Keith v. Wilder, 241 N.C. 672, 86 S.E.2d 444. It is not sufficient to merely refer to the page for the asserted error. If appellant reduces the number of errors previously assigned when he complies with Rule 19(3) by eliminating some of those noted in the case on appeal, he may further reduce the number when he prepares and files his brief. Rule 28 of this Court declares that exceptions in the record not set out in appellant's brief or in support of which no argument is stated will be deemed abandoned. The rules of this Court were promulgated for our convenience in the dispatch of our appellate jurisdiction.

The exceptions shown in the appeal entry challenge the findings because not supported by any evidence, and because the findings were erroneous, the judgment based thereon is likewise erroneous. The exceptions are specific and definite. The Superior Court had no power to compel appellant to furnish additional assignments of error nor to group the errors assigned to comply with our rule. When the case on...