Efird v. . Smith

180 S.E. 581, 208 N.C. 394, 1935 N.C. LEXIS 423

• Court: Supreme Court of North Carolina
• Decided: June 26, 1935
• Status: Published

Opinion

Pee OueiaM.

After bearing tbe affidavits submitted by botb plaintiffs and defendants, and arguments of tbeir counsel, tbe judge found as a fact, and beld as a matter of law, tbat tbe plaintiffs bad failed to make out a •prima facie case against tbe defendant trustees, or any of them, to tbe effect tbat they bave been guilty of any bad faith, misconduct, or other breach of trust in tbe administration of tbeir trust, as alleged in tbe complaint, or tbat tbe plaintiffs or other beneficiaries of said trust bave suffered any loss or damage on account of tbe administration of said trust by tbe defendant trustees.

On these findings of fact and conclusions of law, tbe motion of tbe plaintiffs for tbe relief prayed for in tbeir complaint was denied, and tbe action dismissed.

Tbe only assignment of error in this appeal is based on plaintiff’s exception to tbe judgment. This assignment of error cannot be sustained, because tbe judgment is supported by tbe findings of fact. Manifestly, if tbe plaintiffs failed to show at least a prima facie case at tbe bearing of tbeir motion, they are not entitled to tbe relief sought by tbeir action.

Tbe judgment is affirmed on tbe authority of Wilson v. Charlotte, 206 N. C., 856, 175 S. E., 306. In tbat case it is said:

“It is elementary law tbat upon appeal to tbe Supreme Court tbe appellant must show error. Moreover, this Court can only review such questions as are presented by exceptions duly taken and assignments of error duly made.”

Affirmed.

Stacy, O. J., dissents.