Rogers v. Jones

• Decision Date: 04 October 1916
• Docket Number: 216.
• Citation: 90 S.E. 117,172 N.C. 156
• Parties: ROGERS ET AL. v. JONES ET AL.
• Court: North Carolina Supreme Court

90 S.E. 117

172 N.C. 156

ROGERS ET AL. v. JONES ET AL.

No. 216.

Supreme Court of North Carolina

October 4, 1916

Appeal from Superior Court, Duplin County; Allen, Judge.

Action by Giles Rogers and others against Susan H. Jones and husband. From an adverse judgment, plaintiffs appeal. Affirmed.

A deed being recorded, whether before or after grantor's death there is a presumption of delivery, which must be rebutted.

Gavin & Wallace, of Kenansville, and Geo. R. Ward, of Wallace, and Thad Jones, of Kenansville, for appellants.

H. D Williams and Stevens & Beasley, all of Kenansville, for appellees.

CLARK C.J.

This is an action to set aside a deed under which the defendants claim on the ground that it had never been delivered, the lack of sufficient mental capacity from the grantor to execute the same, and undue influence. The jury found all three issues in favor of the defendants. The trial seems to have hinged, however, almost solely upon the question whether there had been a sufficient delivery.

The assignments of error, except 6, 7, 8, and 9, are totally insufficient and must be disregarded. The first assignment is:

"(1) To the question and answer in the admission of the evidence of the witness J. R. Jones as contained in the exception 1 on page ______ of the record."

In the same form are the other exceptions other than the four above stated. For example, exception 10 is:

"To the refusal of the court to give the plaintiffs' prayer for instruction No. 1, as contained in the plaintiffs' thirteenth exception (see page ______ of the record)."

These would be insufficient even if the blanks had been filled up. In McDowell v. Kent, 153 N.C. 555, 69 S.E. 626, the court, citing numerous cases, said:

"In Thompson v. Railroad, 147 N.C. 412 , there is a very clear discussion of the requirements as to assignments of errors, and of the methods in which they must be set forth. The court will not accept a mere colorable compliance such * * * as entering the 'first exception is the first assignment of error,' etc. This would give no information whatever to the court, for it would necessitate turning back to the record to see what the exception was. What the court desires, and indeed the least that any appellate court requires, is that the exceptions which are bona fide be presented to the court for decision, as the points determinative of the appeal shall be stated clearly and intelligibly by the assignment of errors and not by referring to the record, and therewith shall be set out so much of the evidence or of the charge or other matter or circumstance (as the case may be) as shall be necessary to present clearly the matter to be debated. This requirement of the court is not arbitrary but has been dictated by its experience and from a desire to expedite the public business by our being enabled to grasp more quickly the case before us and thus more intelligently follow the argument of counsel. In this practice we have followed what has long been adopted by other courts. This court is decidedly averse to deciding any case upon a technicality or disposing of any appeal otherwise than upon its merits. But having adopted this rule from a sense of its necessity, and having put it in force only after repeated notice, and having uniformly applied it in every case since we began to do so, it is absolutely necessary that we observe it impartially in every case. That the rule has not been difficult to observe, and that the profession have loyally

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