Jenkins v. Castelloe

• Decision Date: 18 September 1935
• Docket Number: 168.
• Parties: JENKINS et al. v. CASTELLOE et al.
• Court: North Carolina Supreme Court

181 S.E. 266

208 N.C. 406

JENKINS et al. v. CASTELLOE et al.

No. 168.

Supreme Court of North Carolina

September 18, 1935

Appeal from Superior Court, Bertie County; Small, Judge.

Civil action by Sallie Jenkins and another against A. T. Castelloe trustee, and another. From a judgment of the Superior Court remanding the cause to the General County Court for new trial, plaintiffs appeal.

Error and remanded.

Civil action (1) to restrain foreclosure under power of sale in deed of trust; (2) to have plaintiffs declared the owners of the note and deed of trust; and (3) to foreclose in equity instituted and tried in the general county court of Bertie county, resulting in verdict and judgment for plaintiffs. On appeal to the superior court, on matters of law, 38 exceptions were assigned as error, 9 being to portions of the charge. The following judgment was entered in the superior court: "The court finds error in the charge of the court as set out in the exceptions noted."

The cause was thereupon remanded to the general county court for a new trial.

Plaintiffs appeal, assigning as error the supposed rulings upon each and all of the exceptions taken to the charge by the defendants on their appeal to the superior court.

J. H. Matthews, of Windsor, for appellants.

J. A. Pritchett, of Windsor, for appellees.

STACY Chief Justice.

In order to sustain the judgment of the superior court, it would be necessary for us to assume that the judge intended to find, and did find, error in each and all of the 9 exceptions taken to the charge. Manifestly, this was not his intention. Some of the exceptions are too attenuated to warrant such assumption. Yet, on the record as presented, we are called upon to consider each and all of them as having been sustained.

It was said in Smith v. Winston-Salem, 189 N.C. 178, 126 S.E. 514, that when the superior court is sitting as an appellate court, subject to review by the Supreme Court, and a new trial is awarded, it is desirable for the judge to state separately the rulings which he considers erroneous, and which induced his judgment. Davis Bros. Co. v. Wallace, 190 N.C. 543, 130 S.E. 176. This suggestion has been generally followed, with only a few exceptions. It now seems appropriate that it be made a requirement to insure uniformity in the practice. Smith v. Texas Co., 200 N.C. 39, 156 S.E. 160.

When a case is tried originally in the superior court and a new trial is there awarded for errors of law committed during the trial, and not in the court's discretion, the judge is required to state separately the matters which he considers erroneous and which induced his action. Powers v. City of Wilmington, 177 N.C. 361, 99 S.E. 102. If this were not the rule, a "fishing expedition" or excursion through the record would be required in all such cases on appeal. This is contrary to the rule of practice in the Supreme Court. Rawls v. Lupton, 193 N.C. 428, 137 S.E. 175; McKinnon v. Morrison, 104 N.C. 354, 10 S.E. 513; State v. Bittings, 206 N.C. 798, 175 S.E. 299; In re Will of Beard, 202 N.C. 661, 163 S.E. 748; Cecil v. Lumber Co., 197 N.C. 81, 147 S.E. 735.

The rule, then, may be stated as follows:

1. When an appeal is taken from the general county court to the superior court for errors assigned in matters of law, as authorized by C. S. Supp. 1924, § 1608(cc), and a new trial is granted by the superior court, it is essential that the rulings upon exceptions granting the new trial be specifically stated, so that in case of appeal to the Supreme Court, they may be separately assigned as error in accordance with rule 19(3) of the Rules of Practice in the Supreme Court, and properly considered on appeal. Smith v. Texas Co., supra; Davis Bros. Co. v. Wallace, supra.

2. When an appeal is taken from the general county court to the superior court for errors assigned in matters of law, as authorized by C. S. Supp. 1924, § 1608(cc), and the judgment of the general county court is affirmed by the superior court, it follows that each and all of the exceptions, properly presented, were overruled; hence, in assigning errors on appeal to the Supreme Court, it is necessary for appellant to bring forward such of the rulings-but only such-as he deems erroneous in accordance with the requirements of rule 19(3) of the Rules of Practice in the Supreme Court. Woody Bros. Bakery v. Ins. Co., 201 N.C. 816, 161 S.E. 554; Smith v. Texas Co., supra; Harrell v. White (N. C.) 181 S.E. 268, this day decided.

Speaking generally to the subject in Baker v. Clayton, 202 N.C. 741, 164 S.E. 233, it was said:

"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

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