Mcdowell v. J. S. Kent Co

• Decision Date: 07 December 1910
• Court: North Carolina Supreme Court
• Parties: MCDOWELL v. J. S. KENT CO.

69 S.E. 626

(153 N.C. 555)

MCDOWELL

v.J. S. KENT CO.

Supreme Court of North Carolina.

Dec. 7, 1910.

1. Appeal and Error (§ 744^*)—Assignments of Error—Necessity—Time of Filing Assignments.

Supreme Court Rule 19, subd. 2, and Rule 21 (66 S. E. vii), requiring the record to contain an assignment of errors, is not complied with by the filing of assignments of error the day before the beginning of the call of the docket of the district from which the case is appealed; one of the principal purposes of the rules being to enable appellee's counsel to have notice of the points upon which he must prepare his brief.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3043-3048; Dec. Dig. § 744.*]

2. Appeal and Error (§§ 248, 501*)—Exceptions— Waiver.

Exceptions must be taken during trial except as otherwise permitted by statute, and, if not then taken, are waived; it being necessary that the record show that they were taken in time.

[Ed. Note.—For other, cases, see Appeal and Error, Cent. Dig. §§ 1432-1468, 2300-2305; Dec. Dig. §§ 248, 501.*]

3. Appeal and Error (§ 659*)—Assignments of Error—Omission from Record—Correction.

If by accident or inadvertence, without appellant's negligence, an assignment of errors is omitted from the record on appeal, if he acts promptly, appellant may apply to the Supreme Court for certiorari to have such assignments sent up.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2834-2843; Dec. Dig. § 659.*]

4. Appeal and Error (§ 724*)—Assignments of Error—Sufficiency.

A mere colorable compliance with Supreme Court Rule 19, subds. 2, 21, requiring the record to contain assignments of error, such as referring to the exceptions as assignments of error, is not sufficient, but the assignments of error must clearly state the exceptions presented for decision setting out so much of the evidence, etc.. as is necessary to clearly present the matter for review.

[Ed. Note.—For other cases, see Appeal and Error. Cent. Dig. §§ 2997-3001, 3022; Dec. Dig. § 724.*]

5. Appeal and Ebror (§ 753*)—Failure to Assign Error — Affirmance — Defective Record.

Where no error appears upon the face of the record proper, judgment will be affirmed on motion in absence of an assignment of errors.

[Ed. Note.—For other cases, see Appeal and Error. Cent. Dig. §§ 3086-3089; Dec. Dig. § 753.*]

Appeal from Superior Court, Yancey County; Councill, Judge.

Action by Sarah L. McDowell against the J. S. Kent Company. Judgment for plaintiff, and defendant appeals. On motion to affirm for want of an assignment of errors in the record. Judgment affirmed.

Watson, Hudgins & Watson and J. T. Perkins, for appellant.

J. Bis Ray, Gardner & Gardner, and Adams & Adams, for respondent.

CLARK, C. J. This is a motion to affirm the judgment in this case because of a failure to observe the rule which requires an assignment of errors to come up in the record in each case. Rule 19, subd. 2, and Rule 21 (140 N. C. 660, 66 S. E. vii). The appellant resisted the motion on the ground that he had filed the assignments of error the day before the beginning of the call of the docket of the district, to wit, on Monday of that week. This defense loses sight of one of the chief objects of the rule, which is that the appellee's counsel may have notice of the points upon which he must prepare his brief. Though this matter has been often called to the attention of the profession and our determination expressed to enforce the rule, such cases as this occasionally occur. It is of the utmost importance that any rule shall be impartially applied. It would be the greatest injustice to apply it in some cases and not in all.

There is a clear-cut distinction between exceptions and assignments of error. Exceptions must be taken during the trial, and be entered at the time, except exceptions to the charge, which may be filed within 10 days after the trial, and that the complaint does not state a cause of action or that the court has no jurisdiction (which last two may be taken at any time, even in this court, and ore tenus). Exceptions if not taken at the proper time are waived. Hence, in the hurry and stress of a trial, numerous exceptions are taken out of abundant caution. The record must show that they were taken in apt time.

When, however, the appellant makes up his case on appeal, it is his duty to go over the record and select out all the exceptions upon which he intends to rely on the discussion in this court, adding so much of the evidence or other matter which is necessary to "point" the assignment of error. These assignments of error are then required to be placed at the end of the case on appeal. This requirement of an assignment of errors is universal in appellate courts. In Jones v. Railroad (at this term) 69 S. E. 427, we reviewed in this particular the rules in other jurisdictions, showing that they were much more stringent than ours. But for this requirement the appellate court would be required to go through the entire record and examine the exceptions one by one, even though the appellant himself had ceased to rely upon some of them. By selecting the exceptions which the appellant has collected from the record and grouped at the end of the case, ...