Moore v. Owens

Annotate this Case

121 S.E.2d 540 (1961)

255 N.C. 336

Robert MOORE, Irene Moore, Martha Mann, William Mann, Alice McNair, Arthur McNair, William Moore, Bessie Moore, Hattie Gee, Alexander Gee v. Edward L. OWENS, Trustee, and A. Lloyd Owens.

No. 24.

Supreme Court of North Carolina.

September 20, 1961.

*541 Charles V. Bell, Charlotte, and Peter H. Bell, Plymouth, for plaintiffs-appellants.

Bailey & Bailey and W. M. Darden, Plymouth, for defendants-appellees.

PARKER, Justice.

Appellants have two assignments of error: One, the court committed error in refusing to charge the jury as a matter of law, to answer all the issues in favor of plaintiffs and against defendants, Two, the court committed error in charging the jury peremptorily to answer the first and third issues No. These two assignments of error are not supported by any exception anywhere in the record, not even under the assignments of error. Plaintiffs tendered to the court no prayer for instructions.

This Court has universally held that an assignment of error not supported by an exception is ineffectual. Exceptions which appear nowhere in the record except under the assignments of error are worthless and will not be considered on appeal. Barnette v. Woody, 242 N.C. 424, 88 S.E.2d 223, and cases there cited; Rigsbee v. Perkins, 242 N.C. 502, 87 S.E.2d 926; Tynes v. Davis, 244 N.C. 528, 94 S.E.2d 496; Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118; In re McWhirter, 248 N.C. 324, 103 S.E.2d 293; State v. Corl, 250 N.C. 262, 108 S.E.2d 613; *542 Tanner v. Ervin, 250 N.C. 602, 109 S.E.2d 460; Watters v. Parrish, 252 N.C. 787, 115 S.E.2d 1.

This Court said in Rigsbee v. Perkins, supra [242 N.C. 502, 87 S.E.2d 927]: "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." Further discussion is unnecessary.

An exception to a judgment raises the question whether any error of law appears on the face of the record. This includes the question whether the facts found and admitted are sufficient to support the judgment, or whether the judgment is regular in form and supported by the verdict. Coulbourn v. Armstrong, 243 N.C. 663, 91 S.E. 912; City of Goldsboro v. Atlantic Coast Line R. Co., 246 N.C. 101, 97 S.E.2d 486; Strong's N.C. Index, Vol. I, Appeal and Error, Section 21, page 91 et seq., where numerous cases are cited.

This Court said in Wynne v. Allen, 245 N.C. 421, 96 S.E.2d 422, 427: "Plaintiff's exceptions and assignments of error only suffice to challenge the correctness of the judgment. * * * If the answers to the issues, when correctly interpreted, are sufficient in law to support the judgment, plaintiff must fail in his appeal; but if, when so interpreted, they fail to support the judgment, it must be vacated in order that the rights of the parties may be adjusted in accordance with law."

The issues submitted to the jury arise upon the pleadings and the evidence. The verdict here is certain, imports a definite meaning free from ambiguity, and is sufficient in form and substance to support the judgment entered, which is definite in terms, capable of execution, and regular in form. No error of law appears on the face of the judgment. The sole exception in the record is to the signing of the judgment.

The judgment below is