Thompson v. Seaboard Air Line R. Co.

• Decision Date: 22 April 1908
• Citation: 61 S.E. 286,147 N.C. 412
• Parties: THOMPSON v. SEABOARD AIR LINE R. CO.
• Court: North Carolina Supreme Court

61 S.E. 286

147 N.C. 412

THOMPSON v. SEABOARD AIR LINE R. CO.

Supreme Court of North Carolina

April 22, 1908

Connor J., dissenting.

Appeal from Superior Court, Anson County; Webb, Judge.

Action by B. F. Thompson, administrator, against the Seaboard Air Line Railroad Company. Judgment for defendant. Plaintiff appeals. Dismissed.

Under Supreme Court rule 27 140 N.C. 662, 53 S.E. viii, providing that an appellant shall set out in his statement of case his exceptions, briefly and clearly stated and numbered, and no exception not so set out shall be considered, other than exceptions to the jurisdiction, or because the complaint does not state a cause of action; rule 19, subd. 2, 140 N.C. 660 53 S.E. vii, providing that all the exceptions relied on grouped, and numbered shall be set out immediately after statement of case on appeal; and rule 20, providing, if any cause be brought on for argument without compliance with the above regulations, it shall be dismissed, put to the end of the docket, or continued, as may be proper, and, if not dismissed, it shall be referred to the clerk, or some one else, to put the record in the prescribed shape--in case of exception to a ruling on evidence, the testimony should be set out, and if the exception is to some other ruling, it or the attendant facts and circumstances should be so stated that its bearing can be perceived to some extent in reading the assignment; and, the statement purporting to be an assignment of errors, appearing just after the statement of case on appeal, being merely (1) the rulings in excluding the evidence, as noted in exceptions 1 to 44, (2) to the ruling as noted in exception 45, (3) to the ruling as noted in exception 46, and (4) to the judgment of nonsuit as noted in exception 47, the appeal will be dismissed.

The action was to recover damages for the alleged negligent killing of plaintiff's intestate. Forty-seven exceptions were entered during the progress of the trial; the last being a motion to dismiss, as in judgment of nonsuit, which was allowed by the court. In apt time motion was made in this court to dismiss the appeal for noncompliance with the rules of court as to the assignment of errors. The rules applying to the subject being rule 19, subd. 2, and rule 27, appearing in 140 N.C. 653 et seq., 53 S.E. vii, viii. The statement purporting to be an assignment of errors, appearing just after the statement of case on appeal, and offered as a compliance with the rules referred to, is as follows "(1) The ruling of the court in excluding the evidence as noted in the first exception, second exception, third exception, fourth exception, fifth exception, sixth exception, seventh exception, eighth exception, ninth exception, tenth exception, eleventh exception, twelfth exception, thirteenth exception, fourteenth exception, fifteenth exception, sixteenth exception, seventeenth exception, eighteenth exception, nineteenth exception, twentieth exception, twenty-first exception, twenty-second exception, twenty-third exception, twenty-fourth exception, twenty-fifth exception, twenty-sixth exception, twenty-seventh exception, twenty-eighth exception, twenty-ninth exception, thirtieth exception, thirty-first exception, thirty-second exception, thirty-third exception, thirty-fourth exception, thirty-fifth exception, thirty-sixth exception, thirty-seventh exception, thirty-eighth exception, thirty-ninth exception, fortieth exception, forty-first exception, forty-second exception, forty-third exception, forty-fourth exception; (2) to the ruling of the court as noted in the forty-fifth exception; (3) to the ruling of the court as noted in the forty-sixth exception; (4) to the judgment of nonsuit as noted in the forty-seventh exception."

Robinson & Shaw, for appellant.

J. D. Shaw, Murray Allen, and J. A. Lockhart, for appellee.

HOKE J.

The first portion of rule No. 27, which is in substance taken from the statute (Revisal 1905, § 591), provides as follows: "Every appellant shall set out in his statement of case served on appeal his exceptions to the proceedings, ruling, or judgment of the court, briefly and clearly stated and numbered. When no case settled is necessary, then within ten days next after the end of the term at which the judgment is rendered from which an appeal shall be taken, or in case of a ruling of the court at chambers and not in term time, within ten days after notice thereof, appellant shall file the said exceptions in the office of the clerk of the court below. No exception not thus set out, or filed and made a part of the case or record, shall be considered by this court, other than exceptions to the jurisdiction, or because the complaint does not state a cause of action, or motions in arrest for the insufficiency of an indictment." Subdivision 2, rule 19, is as follows: "All the exceptions relied on, grouped, and numbered, shall be set out immediately after statement of case on appeal." And rule 20, establishing the method by which the rule 19 may be enforced, is as follows: "If any cause shall be brought on for argument, and the above regulations shall not have been complied with, the case shall be dismissed or put to the end of the district, or the end of the docket, or continued, as may be proper. If not dismissed, it shall be referred to the clerk, or some other person, to put the record in the prescribed shape, for which an allowance of five dollars will be made to him, to be paid in advance in each case by the appellant, or the appeal will be dismissed."

These rules (19 and 20) refer to exceptions which have been properly assigned for error in accordance with rule 27 and the section of the statute (Revisal 1905, § 561), and the proper observance of all of them is required for the orderly and efficient disposition of causes on appeal. They will not usually be complied with by making a short excerpt from the stenographer's notes, incomplete in itself, and giving no indication of their real bearing upon the question involved. In the excitement of a nisi prius trial, and the hurry and confusion that sometimes attend it, counsel not improperly note many exceptions which, on reflection, they will readily see can have no possible effect on the result. And it is required that in making a...