Baker v. Clayton

• Decision Date: 18 May 1932
• Docket Number: 624.
• Citation: 164 S.E. 233,202 N.C. 741
• Parties: BAKER et al. v. CLAYTON.
• Court: North Carolina Supreme Court

164 S.E. 233

202 N.C. 741

BAKER et al. v. CLAYTON.

No. 624.

Supreme Court of North Carolina

May 18, 1932

Appeal from Superior Court, Buncombe County; Sink, Judge.

Separate actions by John A. Baker and by Nettie A. Baker and by each of three minor children against Mrs. E. S. Clayton. From a judgment of the superior court, reversing nonsuit judgments in the two cases of John A. Baker and wife, and from orders granting a new trial in the suits of the three minor children, defendant appeals.

Affirmed.

Civil actions to recover damages for alleged negligent infliction of personal injuries, consolidated for purpose of trial, and tried in the general county court of Buncombe county, March term, 1932, heard on appeal to Buncombe superior court, April term, 1932.

The record discloses that John A. Baker, his wife, Nettie A Baker, and three of their minor children, Martha, Albert, and Alice, were injured in an automobile collision with defendant's car on August 30, 1931. Five separate suits were instituted in the general county court by the plaintiffs, which were consolidated for purposes of trial. Nonsuits were entered in the cases of the two adult plaintiffs, and the issue of negligence, in the consolidated suits of the three minor children, was answered in favor of the defendant. A counterclaim was set up against Nettie A Baker, owner of the car in which plaintiffs were riding, for damages to defendant and her car. On this counterclaim, the issue of negligence was answered "No," and that of contributory negligence "Yes." There was no appeal from the judgment denying recovery on the counterclaim.

On appeal to the superior court by plaintiffs, the nonsuit judgments in the cases of the two adult plaintiffs were reversed, and a new trial ordered in the suits of the three minor children for errors committed during the trial.

From these rulings, the defendant appeals.

Johnson Smathers & Rollins, of Asheville, for appellant.

Joseph W. Little, of Asheville, for appellees.

STACY C.J.

The general county court of Buncombe county was established in 1929, pursuant to chapter 159, Pub. Laws 1929, which brought said county within the operation of the general statutes on the subject. Jones v. Standard Oil Co., of New Jersey, 202 N.C. 328, 162 S.E. 741.

It is provided by 3 C. S. § 1608(cc) that appeals in civil actions may be taken from the general county court to the superior court of the county in term time for errors assigned in matters of law "in the same manner as is now provided for appeals from the superior court to the supreme court"; and from the judgment of the superior court an appeal may be taken to the Supreme Court "as is now provided by law." This means that in hearing civil cases on appeal from the general county court, the superior court sits as an appellate court, subject to review by the Supreme Court. Cecil v. Snow Lbr. Co., 197 N.C. 81 147 S.E. 735.

On appeal to this court, it is neither essential nor desirable that the entire record in the superior court should be sent up, but only such parts thereof as may be necessary to present the questions sought to be reviewed. Rule 19(1); Hilton v. McDowell, 87 N.C. 364. In other words, the record on appeal to the superior court from the judgment of the county court is not, and, except perhaps in rare instances, e.g., nonsuit or demurrer, ought not to be made the record on appeal to the Supreme Court. Smith v. Texas Co., 200 N.C. 39, 156 S.E. 160; Davis Bros. Co. v. Wallace, 190 N.C. 543, 130 S.E. 176. The purpose of the "case on appeal" is to set forth clearly and succinctly the matters assigned as error. Singer Mfg. Co. v. Barrett, 95 N.C. 36.

Objections, which, upon reflection, can readily be seen to have no substantial merit, should be omitted from appellant's assignments of error (Thompson v. Seaboard Air Line R. R. Co., 147 N.C. 412, 61 S.E. 286), and only such rulings of the superior court as are challenged should be brought forward in accordance with rule 19(3), for consideration by the Supreme Court (Porter v. American Cigar Box Lbr. Co., 164 N.C. 396, 80 S.E. 443). "In this way the scope of our inquiry is narrowed to the identical points which the appellant thinks are material and essential, and the court is not sent scurrying through the entire record to find the matters complained of." Byrd v. Southerland, 186 N.C. 384, 119 S.E. 2.

We have held in a number of cases that the rules governing appeals to this court are mandatory and not directory. Pruitt v. Wood, 199 N.C. 788, 156 S.E. 126. These include the requirement that the exceptions and assignments of error shall be property "grouped and stated." Rawls v. Lupton, 193 N.C. 428, 137 S.E. 175; Taylor v. Hayes, 172 N.C. 663, 90 S.E. 801; Register v. Tidewater Power Co., 165 N.C. 234, 81 S.E. 326.

The following is the substance of what Hoke, J., speaking for the court, had to say on the subject in Lee v. Baird, 146 N.C. 361, 59 S.E. 876: The rules governing appeals have been adopted after extended and careful reflection, and because they were found necessary to a proper performance of the public business of the court, not alone with reference to its reasonable dispatch, but in giving the court a more accurate understanding of causes on appeal, thereby greatly aiding us to an intelligent consideration of the questions presented, and to a determination of controversies on their real merits. Furthermore, a proper compliance with the rules is fair and just to opposing counsel, giving them, as it does, an opportunity to know the positions they will be required to discuss, so that they may be better prepared to aid the court in making true deliverance on the rights of the parties, the purpose which we all have most earnestly at heart. Counsel for appellant, in "grouping and stating" his exceptions and assignments of error, should give the matter careful consideration to the end that the court may have the benefit of his mature judgment and fuller information as to the real questions involved in the controversy. "It is not our desire or...