Weaver v. Morgan

• Decision Date: 22 November 1950
• Docket Number: No. 382,382
• Parties: WEAVER, v. MORGAN, Sheriff, et al.
• Court: North Carolina Supreme Court

Page 916

61 S.E.2d 916

232 N.C. 642

WEAVER, v. MORGAN, Sheriff, et al.

No. 382

Supreme Court of North Carolina.

Nov. 22, 1950

Ottway Burton, Asheboro, for plaintiff appellant.

Ferree & Gavin, Asheboro, for defendants appellees.

WINBORNE, Justice.

The exception in the case in hand is 'to the foregoing findings of fact and judgment'. This, as to findings of fact, is a broadside exception. It fails to point out and designate the particular findings of fact to which exception is taken, and it is insufficient to challenge the sufficiency of the evidence to support the findings, or any one, or more of them. Vestal v. Moseley Vending Machine Co., 219 N.C. 468, 14 S.E.2d 427.

When it is claimed that findings of fact made by the trial judge are not supported by evidence, the exceptions and assignments of error in relation thereto must specifically and distinctly point out the alleged errors. Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351, and cases cited; also Halifax Paper Co. v. Roanoke Sanitary District, 232 N.C. 421, 61 S.E.2d 378, ante; Johnson v. Barham, 232 N.C. 508, 61 S.E.2d 374, ante.

In the absence of proper exceptions to the finding of fact on which a judgment is based, an exception to the signing of the judgment is insufficient to bring up for review the findings of fact. Fox v. Cramerton Mills, 225 N.C. 580, 35 S.E.2d 869; Town of Burnsville v. Boone, supra.

However in the grouped assignments of error plaintiff has set out specific portions of the findings of fact to which exceptions are there stated. But these are apparently abandoned, since they are not brought forward in the appellant's brief filed in this Court. 'Exceptions in the record not set out in appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned by him.' Rule 28 of the Rules of Practice in the Supreme Court, 221 N.C. 544, p. 562.

Nevertheless, a reading of the record fails to show error in the findings of fact to which the above assignments of error relate.

The remaining portion of the exception is to the judgment, and the assignment of error based thereon. These present only the question as to whether, on the facts found, error in matters of law appears upon the face of the record. Culbreth v. Britt Corp., 231 N.C. 76, 56 S.E.2d 15; Terry v. Capital Ice & Coal Co., 231 N.C. 103, 55 S.E.2d 926, and cases cited.

And the assignment of error as stated in the grouping of assignments of error is 'to the holding of the court that the petition and election was in all respects legal and valid and that a person only has to be a registered voter of Randolph County to be a valid petitioner, and that the plaintiff has not established a prima facie case to entitle him to a restraining order, the plaintiff excepts, and the judgment signed in this matter'. Thus the challenge to validity of the election is expressly limited to and focused upon the point that the trial court erred in respect of the ruling as to who is a valid petitioner within the meaning of General Statutes § 18-124 (b), which is subsection b of Section 1 of Chapter 1084 of 1947 Session Laws of North Carolina. This is the sole question. This statute pertains to petitions requesting that an election be held for the purpose of submitting to the voters of...