Rhodes v. City of Asheville

49 S.E.2d 638, 229 N.C. 355, 1948 N.C. LEXIS 482

• Court: Supreme Court of North Carolina
• Decided: October 13, 1948
• Status: Published

Opinion

Stacy, C. J.

The appeal is here on a single exception and assignment of error. Hence, the matter for determination is the sufficiency of the record to uphold the judgment. Wilson v. Charlotte, 206 N. C., 856, 175 S. E., 306.

Apparently the briefs seek to join issue on governmental immunity, Gentry v. Hot Springs, 227 N. C., 665, 44 S. E. (2d), 85, but this is not the question which the trial court decided. We are precluded from considering the sufficiency of the complaint to state a cause of action in the absence of a challenge by demurrer. Moreover, it is alleged that the defendants are operating the facility in their corporate, rather than governmental, capacity.

The only question presented is the sufficiency of the record to sustain the judgment. Lea v. Bridgeman, 228 N. C., 565, 46 S. E. (2d), 555; King v. Rudd, 226 N. C., 156, 37 S. E. (2d), 116; Query v. Ins. Co., 218 N. C., 386, 11 S. E. (2d), 139. Obviously, the judgment is supported by the record. Hence, the exception must fail on appeal. Brown v. Truck Lines. 227 N. C., 65, 40 S. E. (2d), 476; Rader v. Coach Co., 225 N. C., 537, 35 S. E. (2d), 609.

Affirmed.