Smith v. Globe Home Furniture Mfg. Co

• Decision Date: 11 November 1909
• Citation: 151 N.C. 260,65 S.E. 1009
• Court: North Carolina Supreme Court
• Parties: SMITH. v. GLOBE HOME FURNITURE MFG. CO.

65 S.E. 1009

151 N.C. 260

SMITH.

v.GLOBE HOME FURNITURE MFG. CO.

Supreme Court of North Carolina.

Nov. 11, 1909.

1. Judgment (§ 570^*)—Res Judicata—Judgment of Nonsuit.

Where the nonsuit was not on the merits, the judgment of nonsuit will not bar another action by plaintiff.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 1032; Dec. Dig. § 570.*]

2. Appeal and Error (§ 736*)—Assignments of Error—Grouping.

The rule of the Supreme Court requiring the errors relied on to be grouped and assigned in an orderly manner will be strictly enforced, and the merits of the appeal will not be considered when it is not complied with.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3028, 3029; Dec. Dig. § 736.*]

3. Appeal and Error (§ 753*)—Assignment of Errors — Failure to Make — Affirmance.

Where the record on appeal contains no assignment of errors, as required by Supreme Court rules, judgment will be affirmed on motion; no error appearing in the record proper.

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

Appeal from Superior Court, Guilford County; Long, Judge. Action by B. F. Smith against the Globe Home Furniture Manufacturing Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Geo. M. Patton, for appellant.

King & Kimball, T. S. Beall, and G. S. Bradshaw, for appellee.

WALKER, J. The plaintiff alleges that he was injured while in the employ of the defendant by defective machinery. The difficulty we encounter in deciding the case arises out of the failure of the appellant (the plaintiff) to ask for any special instructions upon the evidence, and the fact that the charge of the court is not before us. We have nothing but the process, pleadings, judgment, and what purports to be a case on appeal, but which merely states the evidence in the cause. Judgment was given against the plaintiff, but it does not appear whether upon the pleadings or the evidence. There is no assignment of errors. The plaintiff, having been nonsuited, may sue again, if so advised, and he will not be estopped or barred by the judgment in this case (Tussey v. Owen. 147 N. O. 335, 61 S. E. 180), for the merits of the case, it appears, have not been passed upon by any conclusive ruling of the court. We must insist upon a strict compliance with the rule which requires an assignment of the errors relied on in this court. It is a most reasonable rule, because the appellee is thereby notified of the specific matters which will be involved in the appeal. It enables counsel to prepare their cases with greater ease, eliminating all immaterial questions; and, lastly, but by no means the least of all, 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. But it is sufficient to say that it is the rule of this court, which was adopted after mature consideration and is far less drastic or exacting in its requirements than similar provisions in other appellate tribunals, where even an assignment of errors, strictly conforming to our rule, would not be tolerated for a moment. We have more than once held with some...