Greene v. Lyles

• Decision Date: 19 March 1924
• Docket Number: 256.
• Citation: 122 S.E. 297,187 N.C. 598
• Parties: GREENE ET AL. v. LYLES ET AL.
• Court: North Carolina Supreme Court

122 S.E. 297

187 N.C. 598

GREENE ET AL. v. LYLES ET AL.

No. 256.

Supreme Court of North Carolina

March 19, 1924

On petition to rehear. Petition denied.

For former opinion, see 187 N.C. 421, 121 S.E. 760.

An exception noted on the record, but not brought forward in appellant's brief, is abandoned within rule 28, and will not be considered on a petition to rehear where not dealt with in the original opinion.

B. L. Fentress, of Greensboro, and Roberson, Jerome & Haworth, of High Point, for appellants.

Wm. H. & Thos. W. Ruffin, of Louisburg, for appellees.

STACY, J.

The petition to rehear was submitted to the court in conference by the justices to whom it was referred. Cooper v. Com'rs, 184 N.C. 615, 113 S.E. 569.

The petition is not based on any allegation of error in the opinion as filed, but upon the ground that exception No. 2, noted on the record, was not considered or dealt with in the opinion of the court. This exception was to that portion of the judgment directing a sale of the land through a commissioner. See Tayloe v. Carrow, 156 N.C. 6, 72 S.E. 76, and Ledbetter v. Pinner, 120 N.C. 455, 27 S.E. 123.

The exception was not mentioned in the opinion, because it was not brought forward in appellant's brief, and was therefore abandoned by her. "Exceptions in the record not set out in appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned by him." Rule 28, 185 N.C. 798. The appeal presented no objection to that portion of the judgment directing a sale of the land.

But in no event would the appellees be entitled to have this exception considered by filing a petition to rehear. They did not appeal from the judgment, and the appellant abandoned the exception relating to the order of sale. Error having been found in the judgment below, the case goes back for judgment in accordance with the opinion as certified to the superior court.

The petition must be denied.