Porter v. American Cigar Box Lumber Co.

• Decision Date: 10 December 1913
• Citation: 80 S.E. 443,164 N.C. 396
• Parties: PORTER v. AMERICAN CIGAR BOX LUMBER CO. ET AL.
• Court: North Carolina Supreme Court

80 S.E. 443

164 N.C. 396

PORTER v. AMERICAN CIGAR BOX LUMBER CO. ET AL.

Supreme Court of North Carolina

December 10, 1913

Appeal from Superior Court, Buncombe County; Adams, Judge.

Action by J. A. Porter against the American Cigar Box Lumber Company and others. Judgment for defendants, and plaintiff appeals. On motion to dismiss. Granted.

J. H Merrimon and Zebulon Weaver, both of Asheville, for appellant.

C. C Cowan, of Webster, and Martin, Rollins & Wright, of Asheville, for appellees.

PER CURIAM.

This is a motion to dismiss the appeal and to affirm the judgment for failure to comply with rule 19, § 2 (66 S.E. vii). An examination shows that the motion is well founded. In Thompson v. R. R., 147 N.C. 415, 61 S.E. 287, the alleged assignment of errors were such as are herein set out. In that case, Hoke, J., in dismissing the appeal, said "These rules refer to exceptions which have been properly assigned for error in accordance with rule 27 and Rev. 561, and the proper observance of all of them is required for the orderly and efficient disposition of causes on appeal. These rules will not usually be complied with by making a short excerpt from the stenographer's notes incomplete in themselves and giving no indication of their real bearing upon the question involved. * * * Just what will constitute a sufficiently specific assignment must depend * * * upon the special circumstances of the particular case; but always the very error relied upon should be definitely and clearly presented, and the court not compelled to go beyond the assignment itself to learn what the question is. The assignment must be so specific that the court is given some real aid and a voyage of discovery through an often voluminous record not rendered necessary."

In dismissing the appeal in Lee v. Baird, 146 N.C. 361 59 S.E. 876, for failure to comply with this same rule, the court said: "These rules, published in 140 N.C. 660 [66 S.E. vii], have been adopted after extended and careful reflection, and because they were found necessary to a proper performance of the public business of the court."

In Calvert v. Carstarphen, 133 N.C. 27, 45 S.E. 354, the court said: "The rules of this court are mandatory, not directory." In Smith v. Mfg. Co., 151 N.C. 260, 65 S.E. 1009, Walker, J., in dismissing the appeal for failure to comply with this rule, said: "We must insist upon a strict compliance with this rule. * * * It places before the court in condensed form the entire case, so that we can the more readily understand the argument of counsel and consider the case more intelligently as the discussion before us progresses. * * * We have more than once held, with some degree of emphasis, that this, as well as the other rules of the court, will be enforced, reasonably, of course, but according to their plain intent and purpose."

In Davis v. Wall, 142 N.C. 453, 55 S.E. 351, in dismissing the appeal for failure to comply with this rule, it was said: "Ordinarily, hereafter, such motions will be allowed, upon a failure to comply with rules of this court, without discussing the merits of the case."

In Ullery v. Guthrie, 148 N.C. 418, 62 S.E. 552, it is said: "This is a reasonable and just rule. * * * It is indispensable, in all courts, that there should be some rules of practice, else there would be hopeless disorder and confusion. It is, for the same reason, not so important what the rules are as that * * * they shall be impartially applied to all."

As far back as Sigman v. R. R., 135 N.C. 181, 47...