E. L. Lowie & Co. v. Atkins

• Decision Date: 28 November 1956
• Docket Number: No. 525,525
• Citation: 95 S.E.2d 271,245 N.C. 98
• Court: North Carolina Supreme Court
• Parties: E.L.LOWIE & COMPANY v. R. T. ATKINS, trading as Atkins Oil Company.

Page 271

95 S.E.2d 271

245 N.C. 98

E.L.LOWIE & COMPANY v. R. T. ATKINS, trading as Atkins Oil Company.

No. 525

Supreme Court of North Carolina.

Nov. 28, 1956

Lyon & Lyon, Smithfield, for defendant-appellant.

Wood & Spence, Smithfield, for plaintiff-appellee.

WINBORNE, Chief Justice.

At the outset, while defendant entered exceptions Numbers 12 and 37, respectively, to the action of the trial court in denying his motions for judgment as of nonsuit made first when plaintiff rested its case, and renewed at the close of all the evidence, there is no assignment of error based on these exceptions. Hence they will be deemed to be abandoned. Rule 19(3) of Rules of Practice in Supreme Court, 221 N.C. 544, at page 554.

In this connection it is noted that appellant debates in his brief these two exceptions. Suffice it to say, as declared in State v. Dew, 240 N.C. 595, 83 S.E.2d 482, assignments of error may not be filed, in the first instance, in this Court. They must be filed in the trial court and certified with the case on appeal. G.S. § 1-282. Therefore these exceptions here present no question for this Court to consider and decide.

Moreover, there appear in the record of case on appeal approximately fortyone other exceptions, referred to mainly by number, grouped under heading 'ASSIGNMENTS OF ERROR', none of which is sufficient in form to present the error relied upon without the necessity of going beyond the assignment itself to learn what the question is, as is required by Rule 21 of the Rules of Practice in Supreme Court. See Steelman v. Benfield, 228 N.C. 651, 46 S.E. 2d 829, and cases cited. See also Tillis v. Cotton Mills, 244 N.C. 587, 94 S.E.2d 600; Armstrong v. Howard, 244 N.C. 598, 94 S.E.2d 594. Again it may be noted in respect to these exceptions that assignments of error may not be filed, in the first instance, in this Court. State v. Dew, supra.

But Exception 44 purports to be directed to the entry of the judgment. And an exception to the judgment rendered raises the question as to whether error in law appears upon the face of the record. Indeed the appeal to the Supreme Court is itself an exception to the judgment, or to any other matter of law appearing upon the face of the record. See Lea v. Bridgeman, 228 N.C. 565, 46 S.E.2d 555; Culbreth v. Britt Corp., 231 N.C. 76, 56 S.E.2d 15, and cases cited; also Gibson v. Central Mfrs' Mut. Ins. Co., 232 N.C. 712, 62 S.E.2d 320; Duke v. Campbell, 233 N.C. 262, 63 S.E.2d 555; In re Blalock, 233 N.C. 493, 64 S.E.2d 848, 25 A.L.R.2d 818; State v. Sloan, 238 N.C. 672, 78 S.E.2d 738; Barnette v. Woody, 242 N.C. 424, 88 S.E.2d 223; Cannon v. City of Wilmington, 242 N.C. 711, 89 S.E.2d 595.

In Lea v. Bridgeman, supra [228 N.C. 565, 46 S.E.2d 556], opinion by Ervin, J., it is said: 'The exceptions to the judgment present only the question of whether error appears on the face of the record, and the exceptions must fail if the judgment is supported...