Langley v. Langley, 362
| Decision Date | 02 November 1966 |
| Docket Number | No. 362,362 |
| Citation | 268 N.C. 415,150 S.E.2d 764 |
| Court | North Carolina Supreme Court |
| Parties | Herman LANGLEY v. Indiana LANGLEY. |
Lamar Jones, Kingston, for plaintiff appellee.
Charles L. Abernethy, Jr., New Bern, for defendant appellant.
Under the heading 'Assignments of Error,' defendant lists eight Contentions. However, the exception to the judgment, noted in the appeal entries, is the only exception appearing in the record. An assignment of error is ineffectual unless based on an exception duly noted in apt time. Vance v. Hampton, 256 N.C. 557, 561, 124 S.E.2d 527, 530; 1 Strong, N.C. Index, Appeal and Error § 19.
In the appeal entries, defendant was allowed thirty days in which to serve case on appeal; and plaintiff was allowed twenty days thereafter in which to serve countercase or exceptions. The record before us contains what purports to be a narrative of testimony of defendant and what purport to be affidavits. The record does not show defendant served a case on appeal on plaintiff or that a case on appeal was settled by agreement or otherwise. We accept the record in its present condition as sufficient to indicate that defendant offered evidence in support of her motion and that plaintiff offered evidence (including the affidavit of David S. Henderson, Esq., defendant's former counsel) in opposition thereto.
Prerequisite to decision on defendant's motion was a determination on conflicting evidence as to Mr. Henderson's authority in respect of his representations to Judge Mintz. Mr. Henderson's status as counsel for defendant at April 1965 Civil Term and prior thereto is not challenged. Obviously, the sole basis of Judge Bundy's order is a finding of fact that defendant expressly authorized her said former attorney to abandon defendant's contest of plaintiff's action for an absolute divorce.
Included in defendant's 'Assignments of Error' is the following: 'Judge Bundy erred in not finding facts in dismissing the motion in the cause.' The exception to the judgment affords a sufficient basis for consideration of this assignment of error. However, such assignment of error is without merit. The record indicates, and counsel for defendants so stated upon the oral argument, that no request was made that Judge Bundy make findings of fact.
The general rule, applicable here, is well settled: 'When there is no request for findings of fact and the court makes none, or none appear of record, it will be presumed that the court on proper evidence found facts sufficient to support (the) judgment.' 1 Strong, N.C. Index, Appeal and Error § 22, p. 96, where numerous supporting cases are cited; also, 1 Strong, N.C. Index, Appeal and Error ...
To continue reading
Request your trial
-
State v. Rogers, 20
...assignment has nothing of record to support it. Only assignments of error based on exceptions duly taken are considered. Langley v. Langley, 268 N.C. 415, 150 S.E.2d 764; State v. Ferebee, 266 N.C. 606, 146 S.E.2d 666; State v. Mallory, 266 N.C. 31, 145 S.E.2d 335, 18 A.L.R.3d 1340, cert. d......
-
State v. Blackshear
...instead of numbered exceptions. Assignments of error are ineffectual unless they are based on proper exceptions. Langley v. Langley, 268 N.C. 415, 150 S.E.2d 764 (1966); Bost v. Citizens National Bank, 1 N.C.App. 470, 162 S.E.2d 158 (1968), cert. denied, 274 N.C. 274 (1968). Nevertheless, u......
-
Shepherd v. Shepherd, 689
...change of circumstances affecting the welfare of the child. This assignment of error is based on exceptions duly noted. Langely v. Langely, 268 N.C. 415, 150 S.E.2d 764. As a general rule, the court in which a divorce action is instituted acquires jurisdiction over the custody of unemancipa......
-
Bost v. Citizens Nat. Bank, 68SC168
...than Exception No. 8, to what they refer. An assignment of error is ineffectual if not based on a proper exception. Langley v. Langley, 268 N.C. 415, 150 S.E.2d 764. However, we have carefully examined the record and the evidence and are of the opinion, and so decide, that there is ample ev......