Rigsbee v. Perkins

Annotate this Case

87 S.E.2d 926 (1955)

242 N.C. 502

M. M. RIGSBEE and wife, Julia E. Rigsbee, v. Carl H. PERKINS.

No. 667.

Supreme Court of North Carolina.

June 30, 1955.

*927 Holt, McNairy, Harris & Smith, Greensboro, for plaintiffs.

Harry R. Stanley, Greensboro, for defendant.

JOHNSON, Justice.

The defendant has brought forward only one assignment of error. By it he urges that the trial court made errors of omission by failing in two particulars to declare and explain the law arising on the evidence as required by G.S. ยง 1-180. The questions sought to be raised by the assignment of error need not be discussed for the reason that the assignment does not appear to be supported by an exception previously noted, as required by our rules. See Rules 19(3) and 21, Rules of Practice in the Supreme Court, 221 N.C. 554.

The only exception to the charge is Exception No. 3, as to which the record discloses that the defendant "excepts to the whole charge of the court between the letters (A) and (B)." Between the letters (A) and (B) appears the entire charge of the court, approximately fifteen pages in length. The exception does not specify wherein it is claimed the trial judge erred in instructing the jury. Therefore, the exception is broadside and is wholly ineffectual to support the assignment of error as brought forward. Rawls v. Lupton, 193 N.C. 428, 137 S.E. 175; Price v. City of Monroe, 234 N.C. 666, 68 S.E.2d 283; Poniros v. Nello L. Teer Co., 236 N.C. 145, 72 S.E.2d 9. Besides, an exception to an instruction as given does not ordinarily challenge the omission of the court to charge further on the same or another aspect of the case. Peek v. Wachovia Bank & Trust Co., 242 N.C. 1, 16, 86 S.E.2d 745, 756; Karpf v. Adams, 237 N.C. 106, 74 S.E.2d 325; Runyon v. Adams, 237 N.C. 106, 114, 74 S.E.2d 325, 330.

Thus it is manifest that the assignment of error on which the appeal is predicated is not supported by an exception. And the rule is that only an exception previously noted in the case on appeal will serve to present a question of law for this Court to decide. State v. Gordon, 241 N.C. 356, 85 S.E.2d 322; Moore v. Crosswell, 240 N.C. 473, 82 S.E.2d 208. The function of the assignments of error is to group and bring forward such of the exceptions previously made and noted in the case on appeal as the appellant desires to preserve and present to this Court. Suits v. Old Equity Life Ins. Co., 241 N.C. 483, 85 S.E.2d 602; Dobias v. White, 240 N.C. 680, 83 S.E.2d 785. An assignment of error, as in the case at hand, not supported by an exception comes to naught and will be disregarded. Moore v. Crosswell, supra. Further discussion is unnecessary.

However, the record has been examined, and the charge as given appears to be free of prejudicial error, either of commission or omission. See Call v. Stroud, 232 N.C. 478, 61 S.E.2d 342; Wilson v. Suncrest Lumber Co., 186 N.C. 56, 118 S.E. 797.

The judgment is supported by the verdict and will be upheld.

No error.