Town of Burnsville v. Boone

58 S.E.2d 351, 231 N.C. 577, 1950 N.C. LEXIS 347

• Court: Supreme Court of North Carolina
• Decided: March 22, 1950
• Docket: 165
• Status: Published

Opinion

Winborne, J.

Tbe parties to a civil action may waive trial by jury, ,nd agree that tbe presiding judge may find tbe facts in respect to tbe ssues of fact raised by the pleadings, and declare bis conclusions of law .rising thereon. G.S. 1-184. His findings upon tbe facts have tbe force ,nd effect of a verdict by a jury upon tbe issues involved. Constitution if N. C., Art. IY, Sec. 13. And bis findings of fact are conclusive on appeal if there be evidence to support them. Chastain v. Coward, 79 N.C. 543; Branton v. O’Briant, 93 N.C. 99; Roberts v. Ins. Co., 118 N.C. 429, 24 S.E. 780; Matthews v. Fry, 143 N.C. 384, 55 S.E. 787; Buchanan v. Clark, 164 N.C. 56, 80 S.E. 424; Eley v. R. R., 165 N.C. 78, 80 S.E. 1064; Trust Co. v. Cooke, 204 N.C. 566, 169 S.E. 148; Assurance Society v. Lazarus, 207 N.C. 63, 175 S.E. 705; Odom v. Palmer, 209 N.C. 93, 182 S.E. 741; Best v. Garris, 211 N.C. 305, 190 S.E. 221; Trust Co. v. Lumber Co., 221 N.C. 89, 19 S.E. 2d 138; Turlington v. Neighbors, 222 N.C. 694, 24 S.E. 2d 648; Fish v. Hanson, 223 N.C. 143, 25 S.E. 2d 461; Swink v. Horn, 226 N.C. 713, 40 S.E. 2d 353; Poole v. Gentry, 229 N.C. 266, 49 S.E. 2d 464; Griggs v. York-Shipley, 229 N.C. 572, 50 S.E. 2d 914; Cannon v. Blair, 229 N.C. 606, 50 S.E. 2d 732.

When it is claimed that findings of fact, so made by tbe trial judge, ire not supported by tbe evidence, the exceptions and assignments of irror in relation thereto must specifically and distinctly point out tbe illeged errors. Suit v. Suit, 78 N.C. 272; Chastain v. Coward, supra; Cooper v. Middleton, 94 N.C. 86; Battle v. Mayo, 102 N.C. 413, 9 S.E. 384; Mfg. Co. v. Brooks, 106 N.C. 107, 11 S.E. 456; Tilley v. Bivens, 110 N.C. 343, 14 S.E. 920; Sturdevant v. Cotton Mills, 171 N.C. 119, 87 S.E. 992; Boyer v. Jarrell, 180 N.C. 479, 105 S.E. 9; Hickory v. Catawba County, 206 N.C. 165, 173 S.E. 56; Vestal v. Machine Co., 219 N.C. 468, 14 S.E. 2d 427; McDaniel v. Leggett, 224 N.C. 806, 32 S.E. 2d 602; Wilson v. Robinson, 224 N.C. 851, 32 S.E. 2d 601; Rader v. Coach Co., 225 N.C. 537, 35 S.E. 2d 609.

In Hickory v. Catawba County, supra, there was a general exception to ;he judgment and to tbe judge’s findings of fact. Speaking as to tbe atter, this Court said: “Tbe exception is too indefinite to bring up for review tbe findings of tbe trial court,” citing the Sturdevant and Boyer cases, supra.

In Vestal v. Machine Co., supra, the exception is “to the rulings of thi court and findings of fact upon which the judgment was signed,” am the assignment of error is “that the court erred in its rulings and finding of fact.” The opinion of this Court says that “this is a broadside excep tion and assignment of error,” — that “it fails to point out or designati the particular finding of fact to which exception is taken; nor is it suffi cient to challenge the sufficiency of the evidence to support the findings or any one or more of them,” citing cases.

In Wilson v. Robinson, supra, this headnote epitomizes the opinion “A general exception, to the court’s findings of fact and to the signing of the judgment thereon, is insufficient to bring up for review the finding! of the judge. The alleged errors should be pointed out by specific excep tions to the findings of fact as well as law.”

And in McDaniel v. Leggett, supra, it is said that “while the defend ants excepted generally to the clerk’s findings of fact, no objection madi to any specific finding was noted. This was insufficient,” citing cases.

In the light of these principles we are constrained to hold that thi exceptions, Nos. 39, 40 and 41, entered when the judgment was rendered as set forth in the statement of facts hereinabove, and the assignment,' of error that “His Honor erred” (1) “in finding the facts set forth ii the judgment and to each and every one thereof,” (2) “as to the con elusions of law in the judgment of the court,” and (3) “in the renditioi and signing of the judgment,” as shown in the record on this appeal, are too general and indefinite to challenge the sufficiency of, and to brin§ up for review the evidence as to any particular finding of fact made bj the trial judge. They amount to no more than an exception to the judgment and to the signing of it.

In the absence of proper exceptions to the findings of fact, an exceptioi to the signing of a judgment is insufficient to bring up for review the findings of fact, or the competency and sufficiency of the evidence tc support the findings and conclusions of the trial judge. Fox v. Mills 225 N.C. 580, 35 S.E. 2d 869.

Moreover, in the absence of such proper exception to the findings of fact, of which defendants complain, exceptions to the admission of evidence, taken during the course of the hearing before the trial judge as well as the exceptions taken by defendants to the rulings of the judge in denying their motions for judgment as of nonsuit, and assigned as error, are ineffectual. Smith v. Davis, 228 N.C. 172, 45 S.E. 2d 51; Mfg. Co. v. Arnold, 228 N.C. 375, 45 S.E. 2d 577.

Hence, applying these principles to the case in hand, there remains foi consideration only the exception to the judgment and to the signing of it, And since tbe facts as found by tbe trial judge support tbe judgment, it must be, and it is hereby

Affirmed.