Lancaster v. Smith
| Decision Date | 15 December 1971 |
| Docket Number | No. 715DC506,715DC506 |
| Citation | 13 N.C.App. 129,185 S.E.2d 319 |
| Court | North Carolina Court of Appeals |
| Parties | Tommie B. LANCASTER v. Charles R. SMITH. |
Dees, Dees, Smith & Powell by William A. Dees, Jr., and William L. Powell, Jr., Goldsboro, for plaintiff appellant.
Goldberg & Anderson, by Aaron Goldberg, Wilmington, for defendant appellee.
In the record on appeal, the evidence is presented in question and answer form. This is in violation of Rule 19(d) of the Rules of Practice in the Court of Appeals which requires that the evidence shall be in narrative form, except that a question and answer, or a series of them, may be set out when the subject of a particular exception. This rule further provides that the court, in its discretion, may hear the appeal, dismiss it, or remand it for a settlement of the case on appeal to conform to the rule. State v. Thigpen, 10 N.C.App. 88, 178 S.E.2d 6 (1970).
Furthermore, the only assignment of error in the record on appeal is stated as follows:
'The plaintiff assigns as error the Court's findings of fact and conclusions of law as set forth in his Exceptions Number 2 through 5, R pp 9 & 10 and for entry of the judgment against him as set out by Exception 1, R p 11.'
This assignment attempts to present different propositions of law in one assignment of error, and is broadside and ineffective. State v. Blackwell, 276 N.C. 714, 174 S.E.2d 534 (1970); Hines v. Frink and Frink v. Hines, 257 N.C. 723, 127 S.E.2d 509 (1962); Hicks v. Russell, 256 N.C 34, 123 S.E.2d 214 (1961); Wells v. Sturdivant Life Insurance Co., 10 N.C.App. 584, 179 S.E.2d 806 (1971). This assignment of error does not comply with the Rules of Practice in the Court of Appeals in that it does not show the question sought to be presented without referring to the record. The assignment of error must disclose the questions attempted to be presented without going beyond the assignment itself. See State v. Kirby, 276 N.C. 123, 171 S.E.2d 416 (1970). The Rules of Practice in the Court of Appeals relating to assignments of error are substantially similar to the Rules of Practice in the Supreme Court of North Carolina. In the case of Lewis v. Parker, 268 N.C. 436, 150 S.E.2d 729 (1966), it is said:
* * *'
See also Gilbert v. Moore, 268 N.C. 679, 151 S.E.2d 577 (1966); State v. Oliver, 268 N.C. 280, 150 S.E.2d 445 (1966); Long v. Honeycutt, 268 N.C. 33, 149 S.E.2d 579 (1966); Nationwide Homes of Raleigh v. First-Citizens...
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