Vestal v. Moseley Vending MacHine Exchange, Inc.

14 S.E.2d 427, 219 N.C. 468, 1941 N.C. LEXIS 87

• Court: Supreme Court of North Carolina
• Decided: April 30, 1941
• Status: Published

Opinion

BaRNHill, J.

We are unable to determine upon what grounds the corporate defendant bases its contention that it is not subject to suit in the courts of North Carolina. It contends that there are two separate corporations. Both demurred. If it is a Virginia corporation then the service of the summons under C. S., 491, and the attachment of its property gives jurisdiction. If it is a North Carolina corporation which has withdrawn from the State and left no process agent within the State, as appears by affidavit, then the service of summons upon the Secretary of State is sufficient. Conceding, however, the want of proper service, defendant has appeared and filed bond. This is equivalent to a general appearance. Bizzell v. Mitchell, 195 N. C., 484, 142 S. E., 706. Like: wise, when defendant appeared and filed demurrer it waived any irregularity in the service of summons. In this connection it is to be noted that the demurrer is on behalf of both corporate defendants. The agreement to extend time for filing answer which was filed as a stipulation of record likewise constitutes a general appearance. Lexington v. Indem nity Co., 207 N. C., 774, 178 S. E., 547; Cook v. Bank, 129 N. C., 149; Scott v. Life Assn., 137 N. C., 516.

We are unable to discover any error in tbe judgment overruling tbe demurrer.

Tbe defendant Moseley is in court, if at all, by virtue of a general appearance. Tbe court below found, in part, tbat tbis defendant filed bond for tbe release of tbe property attached and tbat be, through counsel, obtained an agreement for an extension of time within which to answer. Tbis defendant excepts “to tbe rulings of tbe court and findings of fact upon which tbe judgment was signed.” His assignment of error is “tbat tbe court erred in its rulings and findings of fact.” Tbis is a broadside exception and assignment of error. It 'fails to point out or designate tbe particular finding of fact to which exception is taken. Nor is it sufficient to challenge tbe sufficiency of tbe evidence to support tbe findings, or any one or more of them. Buchanan v. Clark, 164 N. C., 56; Assurance Society v. Lazarus, 207 N. C., 63, 175 S. E., 705; Odom v. Palmer, 209 N. C., 93, 182 S. E., 741; McIntosh P. & P., 554, sec. 517. It does not avail tbe defendant upon bis general contention, here made, tbat there is no sufficient evidence to support certain findings made by tbe court.

Tbe case on appeal does not disclose tbe evidence offered. When tbe testimony does not appear in tbe record it is presumed tbat there was sufficient evidence to support tbe findings. Bronson v. Paynter, 20 N. C., 527; Bernhardt v. Dutton, 146 N. C., 206; Wadford v. Gillette, 193 N. C., 413, 137 S. E., 314; Caldwell v. Robinson, 179 N. C., 518; Thornton v. Barbour, 204 N. C., 583, 169 S. E., 153.

We are unable to discover any sufficient reason for disturbing tbe judgment denying tbe motion of tbe defendant Moseley to dismiss tbe action as to him for want of proper service. From tbe findings of fact contained in tbe judgment it appears tbat be has made a general appearance and subjected himself to tbe jurisdiction of tbe court.

Tbe judgment below is

Affirmed.