Smith v. Smith ex rel. Allsbrook

223 N.C. 433

• Court: Supreme Court of North Carolina
• Decided: October 13, 1943
• Status: Published

Opinion

WiNBORNE, J.

The only exception appearing in the record on this appeal is “to the judgment as rendered by the court” below. This presents for decision only the question whether error appears on the face of the record. Cooper v. Cooper, 221 N. C., 124, 19 S. E. (2d), 237; Query v. Ins. Co., 218 N. C., 386, 11 S. E. (2d), 139; Jones v. Griggs, 219 N. C., 700, 14 S. E. (2d), 836, and numerous other cases. See N. C. Digest, subject Appeal and Error, key number 274 (7). Moreover, the judgment being an essential part of the record, the Court will take notice of errors appearing in it, correct them and enter such judgment upon the facts established as in law ought to be rendered. Thornton v. Brady, 100 N. C., 38, 5 S. E., 910, and many other later cases. See Shepard’s N. C. Citations.

In the case in hand error appears upon the face of the judgment.

First: It appears that the furniture and equipment in Smith’s hotel were adjudged to be a part of and necessarily incident to the real estate, that is, the hotel building, and that same were allotted to and accepted by plaintiff as real estate and as part of her dower. The jury has found that at the time of the fire the value of plaintiff’s dower estate in the portion of the building in which Smith’s hotel was being carried on was $25,500.00. Of this valuation the furniture and equipment having been «considered a part of the real estate, the value of them must necessarily have been at least $6,000.00, the amount for which same were insured, leaving no more than $19,500.00 as the value of plaintiff’s dower in the building itself rather than $25,500.00 upon which the present cash value ■of her annuity for life in the proceeds of the insurance on the building was calculated. And if the value of the furniture and equipment was greater than $6,000.00, for which it was insured, the value of plaintiff’s dower in the building itself should be proportionately reduced and the present cash value ascertained accordingly.

Second: The annuity should have been computed at four and one-half per cent, and not at six per cent. The- statute, C. S., 1791, provides that: “When a person is entitled to the use of a sum of money for life, or for a given time, the interest thereon for one year may, computed at four and one-half per cent, be considered as an annuity and the present ■cash value be ascertained as herein provided.”

Other than as here indicated the judgment entered appears to be in accordance with well settled principles of law. See Purvis v. Carstaphan, 73 N. C., 575; Gwathmey v. Pearce, 74 N. C., 398; Gore v. Townsend, 105 N. C., 228, 11 S. E., 160; Foster v. Davis, 175 N. C., 541, 95 S. E., 917; Chemical Co. v. Walston, 187 N. C., 817, 123 S. E., 196; Blower v. MacKenzie, 197 N. C., 152, 147 S. E., 829; Barnes v. Crawford, 201 N. C., 434, 160 S. E., 464; Brown v. McLean, 217 N. C., 555, 8 S. E. (2d), 807; see also C. S., 59-60; Badger v. Daniel, 79 N. C., 372; Moffitt v. Davis, 205 N. C., 565, 172 S. E., 317; Price v. Askins, 212 N. C., 583, 194 S. E., 284.

The cause is remanded to' the end that the value of the furniture and hotel equipment be ascertained and calculations made in accordance with this opinion and for judgment.

Error and remanded.