Travis v. Johnston
| Decision Date | 07 November 1956 |
| Docket Number | No. 170,170 |
| Citation | 244 N.C. 713,95 S.E.2d 94 |
| Parties | E. L. TRAVIS, Sr. v. Ben H. JOHNSTON, Mrs. Alla Johnston, M. R. Johnston, Sallie J. Maclntosh and Alvin J. Dickens, the last two names being minors under twenty-one years old and without general or testamentary gurardian, and all children who may hereafter be born in wedlock of Ben H. Johnston or Sallie J. Maclntosh and Robert L. Johnson, Guardlan ad litem of Mercer L. Maclntosh and Alvin J. Dickens. |
| Court | North Carolina Supreme Court |
A. A. McDonald, Bryant, Lipton, Strayhorn & bryant, and Robert I.Lipton Durham, for movant-appellant.
W. Bernard Allsbrook, Roanoke Rapids, and Dickens & Dickens, Scotland Neck, for Lucius King and James Willis King.
Dickens & Dickens, Scotland Neck, for Robert L. Johnson, guardian ad litem of Mercer L. McIntosh and Alvin J. Dickens, W. O. McGibony, trustee, and Federal Land Bank of Columbia, S.C.
Movant's exceptions are set forth in the appeal entries noted on the judgment. They are stated thus:
'The petitioner-movent further objects to the findings of fact set forth for the reasons that said findings of fact are contrary to and not supported by the evidence in the case.
'The petitioner-movent further objects and excepts to the failure of the Honorable J. Will Pless, Jr. to enter the judgment heretofore tendered by the petitioner-movent to the court and for the further failure of the court to find the facts as set forth in the judgment tendered and refused.
'The petitioner-movent further objects and excepts to the conclusions of law set forth in the judgment of the Honorable J. Will Pless, Jr., dated the 12th day of June 1956, for the reasons that said conclusions of law are erroneous and are not based upon the evidence in this cause.
'The petitioner-movent further objects and excepts to the failure of the court to find the facts as submitted to the court by the petitoner-movent and for the further failure of the court to find the conclusions of law to be such as have been submitted to the court by the petitoner-movent.'
None of the exceptions are numbered. The judgment rendered takes five pages to record. It has twenty findings of fact. The judgment tendered by movant takes nearly six pages of the record. It sets out ten findings of fact, one of which has thirteen subsidiary findings. A casual comparison of the judgment tendered with the judgment rendered shows that many of the facts movant asks the court to find are made findings of fact by Judge Pless, but not always in the identical language suggested by movant.
the assignments of error are typified by Assignment No. 1: 'That the court erred in finding the facts set forth in the judgment of the court dated June 12, 1956.' It is manifest that the Rules of the Court have not been complied with. Rule 21 requires an appellant to state briefly and clearly as well as number his exceptions. Rule 19(3) requires the exceptions taken to be grouped and the error complained of concisely but definitely set out as a part of the assignment. The Court will not consider assignments not based on specific exceptions and which do not comply with its rules. North Carolina State Highway and Public Works Comm. v.Brann, 243 N.C. 758, 92 S.E.2d 146; State v. Bittings, 206 N.C.798, 175 S.E.299; Thompson v. Seaboard Air Line R.R., 147 N.C.412, 61 S.E. 286; Southern Spruce Co. v. Hunnicutt, 166 N.C.202, 81 S.E. 1079; Lambert v. Caronna, 206 N.C. 616, 175 S.E. 303; Rawls v. Lupton, 193 N.C. 428, 137 S.E. 175; McKinnon v. Morrison, 104 N.C. 354, 10 S.E. 513.
The Failure of movant to take proier exceptions to the findings of fact and the failure to comply with the rules limit him to his fourth assignment of error, namely, to the judgment itself. This presents the question: Are the facts found adequate to support the judgment? Byrd v. Thompson, 243 N.C. 271, 90 S.E.2d 394; Bailey v. Bailey, 243 N.C. 412 90 S.E.2d 696; Coulbourn v. Armstrong, 243 N.C. 663, 91 S.E.2d 912; Surratt v. Chas. E. Lambeth Insurance Agency, 244 N.C. 121 93 S.E.2d 72.
The findings of fact made by Judge Pless may be summarized as follows:
John R. Johnston died in 1910, seized of three parcels of land described in a deed from A. Paul Kitchin, commissioner, to M.R.Johnston, recorded in Book 423, page 77.
John R. Johnston devised these lands to his wife, Alla Johnston, and his children, Ben H. Johnston and Sallie MacIntosh, for their lives, and at their deaths to the children of Ben H. Johnston and Sallie J. MacIntosh.
Movant Alvin J. Dickens is the lawful son of Sallie J. MacIntosh.
Among the records of Halifax County is a tax list for the year 1929 in the following form:
Managaed by
'Full Name: Ben Johnson Crews-farm
'Township
'Real Estate Owned Farm Land
----------------------------
'No. Acres Description of Property Value
---------- ---------------------------- -----------
469 J. R. Johnston tract 10,212
125 Whitaker tract 3,000
25 Allen tract 510
-----------
13,722
'Total Value Real Estate $13,722
'Grand Total All Property $13,722'
R.L. Johnson was a licensed attorney in 1932.
E.L. Travis, Jr., the son of E.L. Travis, Sr., was duly qualified and acting clerk of the Superior Court of Halifax County during 1931 and 1932.
On or about October 30, 1931, E. L. Travis, Sr., plaintiff, instituted a suit and filed a verified complaint under the provisions of North Carolina Statutes to foreclose a tax lien against certain property described in said complaint listed for taxation in the name of Ben Johnston.
Summons was issued by the clerk of the Superior Court of Halifax County on October 30, 1931, to the sheriff of Wake County, commanding him to summon Alvin J. Dickens, and said summons was returned endorsed: Alvin J.Dickens was at that time approximately nineteen years of age.
On April 17, 1932, E. L. Travis, Sr., moved for the appointment of a suitable and discreet person as guardian ad litem of Alvin J. Dickens. Robert L. Johnson was appointed guardian ad litem for movant. Summons issued for the guardian ad litem on April 7, 1932, and was returned 'service of this summons accepted and copy of complaint received April 8, 1932, Robert L. Johnson, guardian ad litem of Alvin J. Dickens and Mercer L. McIntosh.'
'That on May 2, 1932, said guardian ad litem filed an answer in manner and form as set forth in the record.' The record shows that the answer of Robert L. Johnson as guardian ad litem of Mercer L. MacIntosh and Alvin J. Dickens admits each of the six allegations of the complaint. It was verified by him before A. L. Hux, deputy clerk of the Superior Court on May 2, 1932. The complaint to which this answer responded may be summarized briefly as alleging in section 1 the death of John R. Johnston in 1910, owning the lands here in Controversy; in section 2, that he devised said lands to his wife and two children during their natural lives and upon their death to the children born in lawful wedlock of Ben H. Johnston and Sallie J. MacIntosh; in section 3, that the lands were listed for taxation in the name of Ben H. Johnston for the year 1929 and taxes wer not paid, that they were sold on June 2, 1930, by the sheriff of Halifax County in the manner prescribed by law and after due advertisement; in section 4, that the sheriff of Halifax County issued plaintiff, the purchase at the tax sale, a tax sale certificate which permitted the owners one year in which to redeem; in section 5, that the year for redemption had elapsed, that redemption has not been made, that the sum of $230.07 paid at the tax sale, with interest as prescribed by law, was a lien superior to all other liens on the lands described; in section 6, that Ben H. Johnston had never married and had no children, that Sallie J. MacIntosh had married twice and had children, movant and Mercer L. MacIntosh. It prays for the recovery of the sum of $230.07 with interest, costs, and reasonable attorney's fees, and that the land be sold by a commissioner to satisfy the amount adjudged to be owing.
On June 27, 1932, the clerk of the Superor Court ordered the land sold to satisfy the tax lien. A Paul Kitchin was appointed commissioner for that purpose. The order of sale recites, inter alia, that the action was instituted the 30th day of October, 1931, that summons was issued on that date to Halifax and Wake Counties; that there was personal service on the defendant Alvin J. Dickens, a minor; that the other defendants were nonresidents of the State and could not after due diligence, be found, and that service was had on the other defendants by publication in the Roanoke News; 'that further notice was published in said newspaper for four successive weeks, by order of court, and posted for thirty days at the courthouse door, requiring all persons claiming an interest in said lands to appear and set up such claims within six months from the date of said notice, which was November 8, 1931, and to present and defend their claims within said time or they would be forever barred and foreclosed of any and all interests or claims in or to said property * * * '; the appointment of Robert L. Johnson as guardian ad litem, the issuance of summons for him, that he accepted service, and filed an answer in which he admitted all the allegations of the complaint to be true and that no answer has been filed to the complaint by any of the defendants except by said guardian ad litem. It was thereupon adjudged...
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