Rouse v. Rouse, 388
| Decision Date | 11 November 1953 |
| Docket Number | No. 388,388 |
| Citation | 238 N.C. 568,78 S.E.2d 451 |
| Parties | ROUSE, v. ROUSE et al. |
| Court | North Carolina Supreme Court |
Jones, Reed & Griffin, Kinston, for plaintiff appellant.
Allen, Allen & Langley, Kinston, for defendant appellees.
On this appeal plaintiff relies on her exception to the signing of the judgment entered in the court below. No case on appeal was required. The record proper constitutes the case on appeal. Wilson v, Chandler, 238 N.C. 401, 78 S.E.2d 155; In re Suggs, 238 N.C. 413, 78 S.E.2d 157. Hence the motion of defendants to dismiss the appeal for failure of plaintiff to serve a case on appeal is without merit and is denied.
On the original appeal plaintiff argued that (1) she is entitled to judgment in the sum of $1,000; (2) she is entitled to an equitable lien on the combination residence and store building property as security for the payment of the amount alleged to be due; and (3) the acceptance by her of the devise and bequest made to her by her husband in his last will and testament does not constitute an election or estop her from now asserting the debt and the lien. This Court adopted the contrary view.
If plaintiff conceived there was error in the original opinion, her remeby was by petition to rehear. She was so advised. Within the time allowed by Rule 44, Rules of Practice in the Supreme Court, 221 N. C. 570, she petitioned for a rehearing. In her petition she again presented these questions for consideration and contended that there was error in the conclusions of the Court in respect thereto. In her petition she stressed her contention that she is at least entitled to a judgment for the alleged debt and 'mended her lick' by citing additional authorities. The petition was denied.
She now seeks to present the identical questions for review. Thus this appeal is nothing more than an attempt to have the Court again review and rehear the original appeal. This is contrary to the usual practice and procedure of the courts. The denial of the petition to rehear put an end to the case.
There must be an end to litigation. Causes must be heard and disposed of in accord with well-recognized rules of procedure. Departure therefrom would tend to produce confusion and uncertainty in the administration of justice.
It is true that when a testator makes a devise or bequest to one of his creditors equal to or greater in value than the debt and, at the same time, specifically directs the payment of his debts, the creditor is not ordinarily put to an election whether he will accept the benefits and forego his...
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Thompson v. Soles
...take under that instrument at the same time he asserts a title or claim which is inconsistent with the same writing. Rouse v. Rouse, 238 N.C. 568, 78 S.E.2d 451 (1953); see also 1 N. Wiggins, Wills and Administration of Estates in North Carolina § 147 (1964). In making an election, a person......
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Thompson v. Soles, 7813SC836
...cannot take under the instrument and at the same time assert a title or claim in conflict with the same writing. See Rouse v. Rouse, 238 N.C. 568, 78 S.E.2d 451 (1953). An election, in equity, is a choice which a party is compelled to make between the acceptance of a benefit under a written......
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Gusick v. Eyman
...to appeal to this court from its own judgment and mandate. Stewart v. Salamon, 97 U.S. 361, 24 L.Ed. 1044. See, also, Rouse v. Rouse, 238 N.C. 568, 78 S.E.2d 451. There are many other cases to the same In Woodward v. Perkins, 119 Mont. 11, 171 P.2d 997, at page 1001, the court said: 'The ge......
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Holsomback v. Holsomback, 769
...of error all relate to the record proper. Therefore, she was not required to serve a case on appeal upon defendant. Rouse v. Rouse, 238 N.C. 568, 78 S.E.2d 451. In Edwards v. Edwards, 261 N.C. 445, 135 S.E.2d 18, the defendant, appealing from a judgment on the pleadings, failed to serve a c......