Darden v. Bone, 318
| Decision Date | 03 May 1961 |
| Docket Number | No. 318,318 |
| Parties | Bert DARDEN v. W. C. BONE and Bryan Oil Company. |
| Court | North Carolina Supreme Court |
Albion Dunn, Greenville, J. Faison Thomson, Jr., Scott B. Berkeley, Goldsboro, for plaintiff appellee.
Braswell & Strickland, Goldsboro, James & Speight, W. H. Watson, Greenville, for W. C. Bone, defendant appellant.
Taylor, Allen & Warren, Goldsboro, for Bryan Oil Company, defendant appellee.
Careful consideration of the nineteen groupings of assignments of error and purported assignments of error set out in the instant case on appeal fails to reveal error for which the judgment of Superior Court should be disturbed. Those properly presented will be expressly considered.
Assignment of Error No. 4 relates to denial by the court of motion of defendant for judgment as of nonsuit at the close of the plaintiff's evidence. In this connection the record and case on appeal fail to show that an exception was taken to the ruling of the court.
'Exceptions which appear nowhere in the record except under the assignments of error are ineffectual, since an assignment of error must be supported by exception duly noted.' Barnett v. Woody, 242 N.C. 424, 88 S.E.2d 223. Indeed, defendant waived such motion when he put on his evidence. G.S. § 1-183. Nichols v. McFarland, 249 N.C. 125, 105 S.E.2d 294.
Assignments of Error Nos. 1, 2, 3, and 6 relate to the court's admission and exclusion of certain testimony. These assignments of error are not sufficiently definite to enable the Court to understand what questions are sought to be presented, without a voyage of discovery through the record. See Rules of Practice in the Supreme Court, 221 N.C. 544; Steelman v. Benfield, 228 N.C. 651, 46 S.E.2d 829; Nichols v. McFarland, supra.
As stated by Hoke, J., in Thompson v. Seaboard R. R. Co., 147 N.C. 412, 61 S.E. 286, 287:
Assignments of Error 9, 10, 11, 12, 13, 14, 15 and 16 relate to the court's charge and are insufficient in that they do not present the error relied upon without the necessity of going beyond the assignment itself to learn what the question is and the particular portion of the charge to which the defendant objects is not specifically pointed out. 'The assignment must particularize and point out specifically wherein the Court failed to charge the law arising on the evidence.' State v. Dilliard, 223 N. C. 446, 27 S.E.2d 85, 87; Lowie & Co. v. Atkins, 245 N.C. 98, 95 S.E.2d 271.
It is clear that the Rules of the Court have not been complied with in the assignments of error as hereinabove enumerated. Rule 21 requires an appellant to state briefly and clearly his exceptions. Rule 19(3) requires that the exceptions taken be grouped and the error complained of concisely but definitely set out as a part of the assignment. 'The Court will not consider assignments not based on specific exceptions and which do not comply with its rules.' Travis v. Johnston, 244 N.C. 713, 95 S.E.2d 94, 96. What the Court requires is that exceptions which are presented to the Court for decision shall be stated clearly and intelligibly by the assignment of error, and not be referring to the record, and therewith there shall be set out so much of the evidence or other matter of circumstance as shall be necessary to present clearly the matter to be debated. In this way the scope of 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.
Therefore, the failure of the defendant to comply with the Rules of Practice limits consideration of assignments of error to Nos. 5, 7, 8, 17, 18, and 19. Of these assignments of error, Nos. 5, 8, 17, 18 and 19 are concerned with the Darden-Bone case, and will be considered first. Defendant's assignment of error No. 5, in substance, is to the effect that the court prejudiced his cause by allowing the Administratrix of the Johnson estate to continue in the trial. In this connection, it must be noted that that defendant agreed to the consolidation of the cases for trial and it is now too late to complain. Indeed, the defendant won the Johnson case. Therefore prejudicial error is not here made to appear.
Assignment of error No. 8 relates to the refusal of the court to nonsuit the plaintiff at the end of all the evidence. Upon a thorough reading of the record the conclusion is...
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State v. Fox
...appeal presents no question of law for this Court to decide. Bulman v. Baptist Convention, 248 N.C. 392, 103 S.E.2d 487; Darden v. Bone, 254 N.C. 599, 119 S.E.2d 634; State v. Hudler, 265 N.C. 382, 144 S.E.2d 50. However, the record affirmatively shows that no prejudice resulted to the defe......
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State v. Colson
...exceptive assignments of error are considered. Rule 19(3), Rules of Practice in the Supreme Court, 254 N.C. 783 at 797; Darden v. Bone, 254 N.C. 599, 119 S.E.2d 634; State v. Strickland, 254 N.C. 658, 119 S.E.2d 781. This is a perfect example of inconsequential assignments which the Supreme......
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State v. Kirby
...appears * * * will not present the alleged error for review. Pratt v. Bishop, 257 N.C. 486, 499, 126 S.E.2d 597, 607; Darden v. Bone, 254 N.C. 599, 601, 119 S.E.2d 634, 636; E. L. Lowie & Co. v. Atkins, 245 N.C. 98, 95 S.E.2d 271.' Samuel v. Evans and Cooper v. Evans, 264 N.C. 393, 141 S.E.......
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State v. Rorie, 433
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