Snyder v. Scheidt

97 S.E.2d 461 (1957)

246 N.C. 81

Max SNYDER v. Edward SCHEIDT, Commissioner of North Carolina Department of Motor Vehicles, State Highway Patrol, and Patrolman, C. L. Blackmon.

No. 305.

Supreme Court of North Carolina.

April 10, 1957.

*462 J. Faison Thomson & Son, Goldsboro, for plaintiff, appellant.

Atty. Gen. George B. Patton, Asst. Atty. Gen. Robert E. Giles and Staff Atty. Kenneth Wooten, Jr., Raleigh, for defendant, appellee.

BOBBITT, Justice.

Plaintiff's first assignment of error is that the court erred in its conclusion of law because the second conviction was on December 20, 1955, more than one year after June 15, 1954, the date of the first conviction. Plaintiff's contention is interesting but unsubstantial. G.S. § 20-17(6) deals with "two charges of reckless driving committed within a period of twelve months." (Italics added.) The date of the offense, not the date of the conviction, is the determinative factor.

Plaintiff's second assignment of error is general, that is, directed to the judgment. With reference thereto, plaintiff, by brief, makes two contentions, viz.:

First, plaintiff asserts that there was no evidence before the court upon which to base its findings of fact. We need not list the several reasons why this position is untenable. Suffice to say, the essential facts found by the court are the facts set forth in plaintiff's statement of case on appeal

Second, plaintiff asserts that, because there was no express finding that said convictions were final convictions, the findings of fact were insufficient to support the judgment. True, the word "conviction," as used in G.S. § 20-17(6), refers to a final conviction by a court of competent jurisdiction. Harrell v. Scheidt, 243 N.C. 735, 739, 92 S.E.2d 182. Plaintiff made no allegation and offered no evidence that he appealed from either of said convictions or that either conviction was otherwise than a final conviction. Moreover, the record fails to show that plaintiff contended at any time in the court below that the convictions were not final convictions. Indeed, it is obvious that the convictions as certified by said clerks were considered by the court below and all parties as final convictions. Nothing else appearing, they are so regarded here.

The provisions of G.S. § 20-17(6) and G.S. § 20-19(f), are mandatory. Harrell v. Scheidt, supra. Plaintiff's assignments of error are without merit.

Affirmed.

RODMAN, J., not sitting.