Whitaker v. Earnhardt

217 S.E.2d 125, 26 N.C. App. 736, 1975 N.C. App. LEXIS 2147

• Court: Court of Appeals of North Carolina
• Decided: August 6, 1975
• Docket: No. 7519DC160
• Status: Published

Opinions

BROCK, Chief Judge.

Under our Rules of Civil Procedure, G.S. 1A-1, Rule 38, the parties to a civil action may waive trial by jury. In all actions tried upon the facts without a jury, the trial judge shall find the facts specially and state separately his conclusions of law thereon, and direct the entry of an appropriate judgment. G.S. 1A-1, Rule 52. The trial judge’s findings of fact have the force and effect of a verdict by a jury upon the issues involved. N. C. Const, art. IV, § 14. The findings of fact by the trial judge are conclusive on appeal if there be evidence to support them. Burnsville v. Boone, 231 N.C. 577, 58 S.E. 2d 351.

[1] Defendant has not taken exception to any finding of fact made by the trial judge. In the absence of proper exceptions to the findings of fact by the trial judge, the appeal presents for review only the question whether the findings of fact support the conclusions of law and the entry of the judgment. 1 Strong, N. C. Index 2d Appeal and Error § 26 (1967). In the absence of proper exceptions to the findings of fact, exceptions to the admission of evidence, as well as exceptions to rulings of the judge in denying defendant’s motions to dismiss, are ineffectual. Burnsville v. Boone, supra; Salem v. Flowers, 26 N.C. App. 504, 216 S.E. 2d 392.

[2] . The fundamental findings of negligence on the part of defendant and damages to plaintiff's crop, to which defendant took no exception, are as follows:

“7. That the fence on the defendant’s land was in a poor state of repair and could not stop cattle from crossing the fence and roaming at large.

“8. That the plaintiff told the defendant on numerous occasions that the fence was in poor condition and incapable of containing cattle.

“9. That the defendant did not repair or improve the condition of the fence.

“10. That sometime during the month of August, 1973, the defendant’s cattle crossed through the fence on the defendant’s land and roamed onto the plaintiff’s leasehold.

“11. That while the defendant’s cattle were roaming on the plaintiff’s leasehold, the said cattle destroyed and rendered unfit for harvest two acres of soybeans.'’’

* * *

“16. That the monetary loss to the plaintiff as a result of the damage to the two acres of soybeans was $420.00.”

In our opinion the foregoing unchallenged findings of fact support the trial court’s conclusions that defendant was negligent and that plaintiff had been damaged in the sum of $420.00 as a result of defendant’s negligence, and support the entry of judgment appealed from.

Affirmed.

Judge Morris concurs.