Byrd v. Southerland

• Decision Date: 03 October 1923
• Docket Number: (No. 225.)
• Citation: Byrd v. Southerland, 119 S.E. 2, 186 N.C. 383 (N.C. 1923)
• Court: North Carolina Supreme Court
• Parties: BYRD. v. SOUTHERLAND.

119 S.E. 2

(186 N. C. 383)

BYRD.

v.SOUTHERLAND.

(No. 225.)

Supreme Court of North Carolina.

Oct. 3, 1923.

Exceptions which are not set forth and brought forward in the assignments of error and in the brief will be deemed abandoned.

Appeal from Superior Court, Sampson County; Calvert, Judge.

Action by Gabe F. Byrd against Ben W. Southerland. From a judgment for plaintiff, defendant appeals. Appeal dismissed.

A. McL. Graham, of Clinton, for appellant.

Stevens, Beasley & Stevens, of Warsaw, and Butler & Herring, of Clinton, for appellee.

PER CURIAM. This is an action to recover commissions for selling land. The jury responded, giving the plaintiff the amount of commissions asked for. There are thirteen assignments of error, of which the first is an example:

"(1) That his honor erred in permitting the plaintiff, Byrd, to testify what he told one Grady West. This assignment covered by first and second exceptions."

There are eight exceptions to evidence, all in this phraseology.

Exception 9 is:

"That his honor erred in refusing defendant's fourth prayer for instructions. This is covered by twenty-first exception."

There are four other exceptions of exactly the same tenor.

Under the rules of procedure in this court, which we have often printed in the Reports, it is necessary for the proper consideration of exceptions that they shall state the exact words of the evidence refused, that the court may see and pass upon it, without groping through the entire record.

In like manner, in the exceptions for refusing prayers for special instruction, the special instruction should be set out, that the court may see if there was error therein, and not be left to find it in the body of the record.

Counsel are presumed to know their own case, and readily know where the exceptions can be found, and the extent and tenor of the same. These exceptions must be grouped and set forth in regular order in the list of assignments of error.

In doing this counsel can omit all unnecessary matters excepted to, or which they wish to abandon, leaving the court to pass only upon those matters which are material. Those which on reflection are not set forth, and not brought forward in the assignments of error and in the brief, will be deemed to be abandoned. 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.

The necessity of rules of practice, and our power to prescribe them, and the necessity of our uniformly enforcing these rules, so there may be no waste of time (which should otherwise be given to the argument of causes) by discussing whether counsel was excusable in the neglect to observe the regulations, has been repeated by this court...