Barnette v. Woody

• Decision Date: 30 June 1955
• Docket Number: No. 745,745
• Court: North Carolina Supreme Court
• Parties: Maude BARNETTE, Unmarried v. Mrs. Annie Laurie WOODY, Widow, Dr. Leslie B. Hohman and Dr. G. W. Gentry.

Page 223

88 S.E.2d 223

242 N.C. 424

Maude BARNETTE, Unmarried v. Mrs. Annie Laurie WOODY, Widow, Dr. Leslie B. Hohman and Dr.

G. W. Gentry.

No. 745

Supreme Court of North Carolina.

June 30, 1955

John F. Matthews, Charles P. Green, Louisburg, and Davis & Davis, Roxboro, for plaintiff appellant.

Reade, Fuller, Newsom & Graham, Durham, and R. B. Dawes, Roxboro, and E. C. Bryson, Durham, for appellee Annie Laurie Woody.

Reade, Fuller, Newsom & Graham, and F. L. Fuller, Jr., Durham, for appellee Dr. Leslie B. Hohman.

Spears & Spears, Durham, and R. P. Burns, Roxboro, for appellee Dr. G. W. Gentry.

DENNY, Justice.

The appellant groups her twenty four assignments of error based on a similar number of purported exceptions, but an examination of the record discloses that a large percentage of these purported exceptions appear nowhere in the record except under the assignments of error, and not a single one of the remaining exceptions is set out in the case on appeal and numbered, as required by Rule 21, Rules of Practice in the Supreme Court, 221 N.C. 558. Moreover, in many instances, the words 'exception by plaintiff,' which appear in the context of the case on appeal, and apparently being the exception upon which the appellant intended to rely in grouping her assignments of error, do not appear on the page indicated thereunder. Hence, it would require a tedious and time consuming voyage of discovery for us to ascertain upon what the appellant is relying to show error, and our Rules and decisions do not require us to make any such voyage. In re Will of Beard, 202 N.C. 661, 163 S.E. 748; Cecil v. Snow Lumber Co., 197 N.C. 81, 147 S.E. 735.

This Court has universally held that an assignment of error not supported by an exception is ineffectual. Rigsbee v. Perkins, N.C., 87 S.E.2d 926; State v. Howell, 239 N.C. 78, 79 S.E.2d 235; State v. Moore, 222 N.C. 356, 23 S.E.2d 31; Smith v. Dillon Supply Co., 214 N.C. 406, 199 S.E. 392; Rogers v. Jones, 172 N.C. 156, 90 S.E. 117; Thompson v. Seaboard Air Line R. Co., 147 N.C. 412, 61 S.E. 286. Moreover, the provisions of G.S. § 1-206, as amended by Chapter 150, Session Laws of 1949, and by Chapter 57, Session Laws of 1953, do not eliminate the necessity for setting out and numbering the exceptions relied upon in the statement of the case on appeal. Rule 21, supra. But, in the absence of any exceptions, or where they have not been preserved in accord with the requirements of our Rules, the appeal will be taken as an exception to the judgment. State v. Sloan, 238 N.C. 672, 78 S.E.2d 738; Gibson v. Central Mfrs' Mutual Insurance Co., 232 N.C. 712, 62 S.E.2d 320; Dixon v. Osborne, 201 N.C. 489, 160 S.E. 579. Therefore, the only question presented on this appeal is whether or not the court below committed error in sustaining the defendants' motions for judgment as of nonsuit.

An examination of the plaintiff's complaint leaves one in doubt as to whether she is seeking to recover on an action for malicious prosecution, abuse of process, or for false imprisonment. Likewise, judging from the brief filed in her behalf, her counsel seem doubtful as to what cause of action they are relying upon. In fact, they say in their brief 'that the plaintiff's evidence has made out a case of actionable tort against the defendants and each of them and that it is immaterial whether the label of malicious prosecution or abuse of process or omission of duty be affixed to the case.'

This action was begun two years, eleven months and twenty-one days after the plaintiff was discharged from the State Hospital, after having been under observation at that institution for seventy-six days and held not to show any evidence of a mental disorder. Hence, the three-year statute of limitations pleaded by the defendants, G.S. § 1-52, would not be a bar to an action for malicious prosecution or abuse of process. However, it would seem that the plea of the one-year statute of limitations, G.S. § 1-54, would be a bar to an action for false imprisonment. Jackson v. Parks, 216 N.C. 329, 4 S.E.2d 873.

Abuse of process consists in the malicious misuse or perversion a civil or criminal writ to accomplish some purpose not warranted or commanded by the writ. Ellis v. Wellons, 224 N.C. 269, 29 S.E.2d 884; Melton v. Rickman, 225 N.C. 700, 36 S.E.2d 276, 162 A.L.R. 793; McCartney v. Appalachian Hall, 230 N.C. 60, 51 S.E.2d 886.

The distinction between an action for malicious prosecution and one for abuse of process is that malicious prosecution is based upon malice in causing the process to issue, while abuse of process lies for its improper use after it has been issued. In an action for malicious prosecution the plaintiff must prove malice, want of probable cause and termination of the prosecution or proceeding in plaintiff's favor. Abernethy v. Burns, 210 N.C. 636, 188 S.E. 97; Carson v. Doggett, 231 N.C. 629, 58 S.E.2d 609. However, the only essential...