London v. London ( 1967 )

157 S.E.2d 90 (1967) 271 N.C. 568

Thedia Wilson LONDON
v.
Drewey LONDON.

No. 208.

Supreme Court of North Carolina.

October 11, 1967.

No counsel for plaintiff appellee.

Joseph B. Roberts, III, Gastonia, for defendant appellant.

SHARP, Justice.

Defendant's sole exception is the one which the law entered for him when he gave notice of appeal. "An appeal is itself an exception to the judgment * * * but limits the review to the question of whether the findings of fact are sufficient to support the judgment or whether error of law appears on the face of the record." 1 Strong, N.C.Index, Appeal and Error § 21 (1957).

In his brief, defendant assumes that the order from which he appeals was entered in the second suit, Case No. 5314, and he challenges the authority of the court to award plaintiff alimony pendente lite in that case after it had been nonsuited. Appellant's conclusion is based on a false premise. The judgment of nonsuit specifies that it was entered in Case No. 5314. The cause which was calendared for trial was Case No. 4941, and, although the order awarding plaintiff alimony does not bear the docket number of the case in which it was entered, obviously it was made in Case No. 4941. Both the nonsuit in Case No. 5314 and the order from which defendant appeals were signed on 3 August 1967. The latter appears last in the transcript, and we do not assume that Judge Froneberger entered an order in a case which he had just nonsuited. There is a presumption in favor of the regularity and validity of judgments in the lower court, and the burden is upon appellant to show prejudicial error. 2 McIntosh, N.C. Practice and Procedure § 1800 (2d Ed., 1956). "Where the record is silent upon a particular point, the action of the trial judge will be presumed correct." 1 Strong, N.C.Index, Appeal and Error § 39 (1957).

The pendency of a prior action between the same parties for the same cause in a State court of competent jurisdiction works an abatement of a subsequent action in the same court or in another court of the State having like jurisdiction. Houghton v. Harris, 243 N.C. 92, 89 S.E.2d 860; McDowell v. Blythe Brothers Co., 236 N.C. 396, 72 S.E.2d 860. The institution of Case No. 5314 in nowise affected the right of Judge Froneberger to proceed to hear the prior action, Case No. 4941, which had been duly calendared for trial. So far as the record discloses, defendant made no motion to continue the hearing of plaintiff's motion for alimony pendente lite when Case No. 4941 was reached on the calendar. The complaints in both cases contained substantially the same allegations, and there is no reason to believe that it was the number of the case which induced the order. Defendant offered evidence, and his counsel argued his contentions. The court found the facts against him, and the facts support its judgment.

No error.