Smith v. Tex. Co

• Decision Date: 19 December 1930
• Docket Number: No. 605.,605.
• Citation: 200 N.C. 39,156 S.E. 160
• Parties: SMITH. v. TEXAS CO.
• Court: North Carolina Supreme Court

156 S.E. 160

(200 N. C. 39)

SMITH.

v.TEXAS CO.

No. 605.

Supreme Court of North Carolina.

Dec. 19, 1930.

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

Action by F. L. Smith against the Texas Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

This action to recover damages for the breach by defendant of a contract and lease, with respect to a service station, was commenced in the general county court of Buncombe county, by summons dated April 2, 1930. It was tried on the issues raised by the pleadings at June term, 1930, of said court. The issues submitted to the jury at said trial were answered as follows:

"1. Did. the plaintiff and defendant enter into a contract and lease for the Alexander Service Station for a period beginning November 15, 1929, and ending November 14, 1930, as alleged in the complaint? Answer, Yes.

"2. If so, did the defendant breach said contract and lease as alleged in the complaint? Answer, Yes.

"3. Did the defendant agree to pay he rent on the service station located on Burnsville Hill, as alleged in the complaint? Answer, Yes.

"4. What amount, if any, is the plaintiff entitled to recover of the defendant? Answer, $600.00."

From judgment on the foregoing verdict, signed by the judge of the general county court of Buncombe county, defendant appealed to the superior court of said county. On this appeal, defendant duly assigned as error adverse rulings of the trial court on its objections to the admission and exclusion of evidence, and on its motion for judgment as of nonsuit. It also assigned as error certain instructions of the court to the jury, to which it had duly excepted.

This appeal was heard at October term, 1930, of the superior court of Buncombe county by the judge presiding at said term. Defendant's assignments of error on said appeal were not sustained. The judgment of said court was affirmed.

From the judgment of the superior court, defendant appealed to the Supreme Court.

Bourne, Parker, Arledge & Du Bose, of Asheville, for appellant.

Edward H. McMahon and Carl W. Greene, both of Asheville, for appellee.

CONNOR, J.

The transcript filed in this court on defendant's appeal from the judgment of the superior court contains no grouping of exceptions or assignments of error as required by the rules of this court. Rule 19(3), 192 N. C. page 847. Defendant's assignments of error on its appeal from the judgment of the general county court to the superior court of Buncombe county cannot be considered by this court. Davis Bros. Co. v. "Wallace, 190 N. C. 543, 130 S. E. 176. By these assignments of error, defendant presented to the superior court its contention that the judgment of the general county court in this action should be reversed, and the action dismissed, or at least that a new trial should be granted, for errors in matters of law, at the trial in the general county court; this contention was considered and passed on by the superior court, in the exercise of its statutory appellate jurisdiction. C. S. Supp. 1924, § 160S(cc). Defendant's contention was...