Lancaster v. Smith

185 S.E.2d 319, 13 N.C. App. 129, 1971 N.C. App. LEXIS 1171

• Court: Court of Appeals of North Carolina
• Decided: December 15, 1971
• Docket: 715DC506
• Status: Published

Opinion

MALLARD, Chief Judge.

In the record on appeal, the evidence is presented in question and answer form. This is in violation of Rule 19(d) of the Eules of Practice in the Court of Appeals which requires that the evidence shall be in narrative form, except that a question and answer, or a series of them, may be set out when the subject of a particular exception. This rule further provides that the court, in its discretion, may hear the appeal, dismiss it, or remand it for a settlement of the case on appeal to conform to the rule. State v. Thigpen, 10 N.C. App. 88, 178 S.E. 2d 6 (1970).

Furthermore, the only assignment ■ of error in the record on appeal is stated as follows:

“The plaintiff assigns as error the Court’s findings of fact and conclusions of law as set forth in his Exceptions Number 2 through 5, E pp 9 & 10 and for entry of the judgment against him set out by Exception 1, E p 11.”

This assignment attempts to present different propositions of law in one assignment of error, and is broadside and ineffective. State v. Blackwell, 276 N.C. 714, 174 S.E. 2d 534 (1970); Hines v. Frink and Frink v. Hines, 257 N.C. 723, 127 S.E. 2d 509 (1962); Hicks v. Russell, 256 N.C. 34, 123 S.E. 2d 214 (1961) ; Wells v. Insurance Co., 10 N.C. App. 584, 179 S.E. 2d 806 (1971). This assignment of error does not comply with the Eules of Practice in the Court of Appeals in that it does not show the question sought to be presented without referring to the record. The assignment of error must disclose the questions attempted to be presented without going beyond the assignment itself. See State v. Kirby, 276 N.C. 123, 171 S.E. 2d 416 (1970). The Eules of Practice in the Court of Appeals relating to assignments of error are substantially similar to the Eules of Practice in the Supreme Court of North Carolina. In the case of Lewis v. Parker, 268 N.C. 436, 150 S.E. 2d 729 (1966), it is said:

“ * * * We have repeatedly said that these rules require an assignment of error to show specifically what question is intended to be presented for consideration without the necessity of going beyond the assignment of error itself. A mere reference in the assignment of error to the record page where the asserted error may be discovered is not sufficient. * * * ”

See also Gilbert v. Moore, 268 N.C. 679, 151 S.E. 2d 577 (1966) ; State v. Oliver, 268 N.C. 280, 150. S.E. 2d 445 (1966); Long, v. Honeycutt, 268 N.C. 33, 149 S.E. 2d 579 (1966) ; Nationwide Homes v. Trust Co., 267 N.C. 528, 148 S.E. 2d 693 (1966); Hunt v. Davis, 248 N.C. 69, 102 S.E. 2d 405 (1958).

However, we do not dismiss the appeal for failing to narrate the evidence. We treat the appeal itself as an exception to the judgment. Barnette v. Woody, 242 N.C. 424, 88 S.E. 2d 223 (1955). The question presented is whether the trial judge committed error in dismissing plaintiff’s action with prejudice, and we hold that he did not. The judgment of the district court is affirmed.

Affirmed.

Judges1 Hedrick and Graham concur.