Riggan v. Harrison

• Decision Date: 21 September 1932
• Docket Number: 110.
• Citation: 165 S.E. 358,203 N.C. 191
• Parties: RIGGAN v. HARRISON et ux.
• Court: North Carolina Supreme Court

165 S.E. 358

203 N.C. 191

RIGGAN v. HARRISON et ux.

No. 110.

Supreme Court of North Carolina

September 21, 1932

Appeal from Superior Court, Harnett County; Cowper, Special Judge.

Action by Savannah Riggan, administratrix, against C. H. Harrison and wife. From a judgment for defendants, plaintiff appeals.

Appeal dismissed.

Civil action to recover damages for an alleged wrongful death, occasioned by an automobile accident.

It appears from the charge of the court that the usual issues of negligence, contributory negligence, and damages were submitted to the jury, and it was stated on the argument that the first two issues were answered in the affirmative. The judgment recites they were answered in favor of the defendants.

The plaintiff appeals, assigning errors.

Young & Young, of Dunn, for appellant.

Thos. W. Ruffin, of Raleigh, for appellees.

STACY, C.J.

We have examined the seven assignments of error appearing on the record and find none of sufficient merit to warrant a new trial.

But for other reasons, the appeal must be dismissed.

1. Rule 19, § 1, provides that "the pleadings on which the case is tried, the issues, and the judgment appealed from shall be a part of the transcript in all cases." The issues upon which the case was tried are not in the record. It is the uniform practice to dismiss the appeal for failure to send up necessary parts of the record proper. Pruitt v. Wood, 199 N.C. 788, 156 S.E. 126; Waters v. Waters, 199 N.C. 667, 155 S.E. 564.

2. None of the assignments of error are brought forward and discussed in appellant's brief. They are, therefore, deemed to be abandoned. State v. Lea, 203 N.C. 13, 35, 164 S.E. 737. "Exceptions in the record not set out in appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned." Rule 28; In re Beard's Will, 202 N.C. 661, 163 S.E. 748.

3. The appeal is in forma pauperis, and the affidavit is defective in that it does not contain the averment, as required by C. S. § 649, that appellant "is advised by counsel learned in the law that there is error *** of law in the decision of the superior court in said action." This is a jurisdictional matter. Honeycutt v. Watkins, 151 N.C. 652, 65 S.E. 762.

Following the entry of appeal is the notation: "Appeal in forma pauperis by consent." This, of course, is unavailing. 7 R. C. L. 1039.

Appeal dismissed.