Wheeler v. Cole

• Decision Date: 10 December 1913
• Citation: 80 S.E. 241,164 N.C. 378
• Parties: WHEELER v. COLE et al.
• Court: North Carolina Supreme Court

80 S.E. 241

164 N.C. 378

WHEELER

v.COLE et al.

Supreme Court of North Carolina.

Dec. 10, 1913.

1. Appeal and Error (§ 1127*)—Affirmance —Motion.

As the Supreme Court must examine the record, even if no errors are assigned, a party desiring to take advantage of the insufficiency of an appellant's assignments should move for an affirmance, although a motion in the alternative for an affirmance or dismissal is sufficient.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4432-4440; Dec. Dig. § 1127.*]

2. Appeal and Error (§ (599*)—Review — Record—Sufficiency.

Alleged errors in the charge or the rejection of issues tendered will not be reviewed, where the matters complained of are not in the record.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2928-2930; Dec. Dig. § 690.*]

i. Appeal and Error (§ 274*)—Presentation of Grounds of Review in Court Below— Sufficiency.

An exception taken to several distinct matters, some of which are clearly correct, is insufficient to present any error for review.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1591, 1592, 1605, 1606, 1607, 1624; Dec. Dig. § 274.*]

4. Trial (§ 244*)—Instructions—Charge.

Where the court was evidently stating the contentions of the parties as to the force of the evidence taken as a whole, his reference to the testimony of one witness is not improper as tending to restrict the consideration of the jury to it alone.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 577-581; Dec. Dig. § 244.*]

5. Bills and Notes (§ 489*)—Proof—Variance.

In an action on notes which, it was claimed, defendant had agreed to pay, the particular form of the agreement is not essential, and proof of a slightly different agreement from that alleged does not constitute a variance.

[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 1587-1642; Dec. Dig. § 489.*]

6. Trial (§ 295*)—Instructions.

Where the charge as a whole was correct, error in a single expression is not ground for reversal, for it must be considered as a whole.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 703-717; Dec. Dig. § 295.*]

7. New Trial (§ 108*)—Newly Discovered Evidence.

A new trial should not be granted on the ground of newly discovered evidence which would not probably change the result.

[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 226, 227; Dec. Dig. § 108.*]

8. Appeal and Error (§ 748*)—Affirmance.

Where appellant's exceptions do not comply with the court rules requiring errors to be assigned by stating in a clear and intelligible manner those to which exceptions were taken, the judgment will be affirmed on appeal.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3058-3064; Dec. Dig. § 748.*]

Appeal from Superior Court, Buncombe County: Adams, Judge.

Action by Cura L. Wheeler against Romulus R. Cole and others. From a judgment for plaintiff, defendants appeal. Affirmed.

J. H. Merrimon, of Asheville, for appellants.

Mark W. Brown, of Asheville, for appellee.

PER CURIAM. [1] Plaintiffs, appellees, moved in this court to dismiss the appeal or to affirm the judgment, because the errors alleged by the appellants were not properly assigned in the case on appeal, and in accordance with the well-settled rule of this court. The proper motion is to affirm, as we are required to examine the record, even if no errors are assigned in the case on appeal, or there is no case on appeal at all. But plaintiff has submitted his motion in the alternative, which is usual, and it is sufficient in form.

Upon examination of the record, we find there are 15 exceptions, and 9 of them are taken to the charge of the court, when it is not in the record, and therefore not before us (Todd v. Mackie, 160 N. C. 352, 76 S. E. 245), but only the exceptions to it. The first exception is to the rejection of issues tendered, which are not in the record, and therefore we cannot review this ruling. One of the exceptions, the eleventh, is to the modification of a request for an instruction, and two, the twelfth and thirteenth, are to the refusal of instructions, and the last two are merely formal. None of them, however, complies with the rule of this court, and we must affirm the judgment for this reason, as we find no error in the record. We have gone carefully through the record, examined the exceptions as they appear in the body of the record, and we find no substantial error.

One of the principal grounds of complaint, as stated in the brief, but not in the assignment or the exception, is that the judge submitted the issues to the jury upon testimony separately as to the execution of the notes by George W. Cole and wife to the plaintiffs, and that Romulus Cole accepted the deed to himself upon an agreement to pay them at the death of his father and mother, when there is no allegation or sufficient proof of these matters, and in the defendants' brief attention is directed to what was said by the witness J. B. Hyder, which, it is contended, is the only testimony on the point, and fails signally to prove the said facts so stated to the jury or to be any evidence of them. There are several answers to this exception, though one is sufficient. (1) The exception is taken to several distinct matters, some of which are clearly correct, and it is not pointed to the alleged infirmity in the proof alone. (2) The judge, at that part of his charge, was evidently stating the contentions of the parties as to the force and effect of the evidence taken as a whole, and his reference to Hyder's testimony wasnot intended to restrict the consideration of the jury to it alone, but was merely one part of an entire recital of the contentions made by the respective parties, with a subsequent direction to weigh all of the testimony. It may be added that, if the suggested allegation was not made in the complaint, the proof was hardly a substantial variance from the one that was there; the question at last being whether Romulus Cole had agreed to pay the plaintiffs the several amounts mentioned, and, if he did, the particular form of the agreement was not essential. The charge is to be considered as a whole, and when thus viewed, if it appears that the jury must have understood it, error in a single expression of the judge is not sufficient ground for a...