Town of Burnsville v. Boone , 231 N.C. 577 ( 1950 )

58 S.E.2d 351 (1950) 231 N.C. 577

TOWN OF BURNSVILLE
v.
BOONE et ux.

No. 165.

Supreme Court of North Carolina.

March 22, 1950.

C. P. Randolph, W. E. Anglin, Burnsville, for defendants-appellants.

Bill Atkins Burnsville, for plaintiff-appellee.

WINBORNE, Justice.

The parties to a civil action may waive trial by jury, and agree that the presiding judge may find the facts in respect to the issues of fact raised by the pleadings, and declare his conclusions of law arising thereon. G.S. § 1-184. His findings upon the facts have the force and effect of a verdict by a jujry upon the issues involved. Constitution of N. C. Art. IV, Sec. 13. And his 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. Life 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. Coast Line R. R. Co., 165 N. C. 78, 80 S.E. 1064; Central Bank & Trust Co. v. Cooke, 204 N.C. 566, 169 S.E. 148; Equitable Life 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; Peoples Bank & Trust Co. v. Tar River Lbr. 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. Stoker Service Co., Inc., 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 the trial judge, are not supported by the evidence, the exceptions and assignments of error in relation thereto must specifically and distinctly point out the alleged 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; Falls of Neuse Mfg. Co. v. Brooks, 106 N.C. 107, 11 S.E. 456; Tilley v. Bivens, 110 N.C. 343, 14 S.E. 920; Sturdevant Co. v. Selma Cotton Mills, 171 N.C. 119, 87 S.E. 992; Boyer v. Jarrell, 180 N.C. 479, 105 S.E. 9; City of Hickory v. Catawba County, 206 N.C. 165, 173 S.E. 56; Vestal v. Moseley Vending Machine Exchange, 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, 602; Rader v. Coach Co., 225 N.C. 537, 35 S.E.2d 609.

In Hickory v. Catawba Co., supra, there was a general exception to the judgment and to the judge's findings of fact. Speaking as to the latter, this Court said [206 N.C. 165, 173 S.E. 59]: "The exception is too indefinite to bring up for review the findings of the trial court", citing the Sturdevant and Boyer cases, supra.

In Vestal v. Machine Exchange, supra [219 N.C. 468, 14 S.E.2d 429], the exception is "to the rulings of the court and findings of fact upon which the judgment was signed", and the assignment of error is "that the court erred in its rulings and findings of fact". The opinion of this Court says that "this is a broadside exception and assignment of error",—that "it fails to point out or designate the particular finding of fact to which exception is taken. Nor is it sufficient 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 findings of the judge. The alleged errors should be pointed out by specific exceptions as to findings of fact as well as law".

And in McDaniel v. Leggett, supra [224 N.C. 806, 32 S.E.2d 605], it is said that "while the defendants excepted generally to the clerk's findings of fact, no objection [made] to any specific finding was noted. This was insufficient", citing cases.

In the light of these principles we are constrained to hold that the exceptions, Nos. 39, 40 and 41, entered when the judgment was rendered, as set forth in the statement of facts hereinabove, and the assignments of error that "His Honor erred" (1) "in finding the facts set forth in the judgment and to each and every one thereof", (2) "as to the conclusions of law in the judgment of the court", and (3) "in the rendition 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 bring up for review the evidence as to any particular finding of fact made by 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 exception 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 to 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, 174 A.L.R. 643; Safie Mfg. Co. v. Arnold, 228 N.C. 375, 45 S.E.2d 577.

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

Affirmed.