Hoover v. Crotts

61 S.E.2d 705 (1950) 232 N.C. 617

HOOVER
v.
CROTTS et al.

No. 387.

Supreme Court of North Carolina.

November 8, 1950.

Miller & Moser, Asheboro, for plaintiff appellant.

Spence, Smith & Walker, Asheboro, for defendant appellees.

BARNHILL, Justice.

The exception to the refusal of the court to render judgment on the pleadings is untenable. Defendants denied default in the payment of rent and plead tender thereof under G.S. § 42-33. Thus it appears that all material facts are not admitted. Instead, the answer raises issues of fact for the jury. There can be no judgment for plaintiff on the pleadings unless the facts entitling plaintiff to relief are admitted, and no valid defense or plea in avoidance is asserted in the answer.

The plaintiff does not except to any particular finding of fact. She merely enters a broadside exception "to the findings of fact and the conclusions of law based thereon." Such exception presents nothing for review.

The exception to the judgment entered presents the single question whether the facts found and admitted are sufficient to support the judgment. It is insufficient to bring up for review the findings of fact or the evidence upon which they are based. Roach v. Pritchett, 228 N.C. 747, 47 S.E.2d 20; Russos v. Bailey, 228 N.C. 783, 47 S. E. 22; Rader v. Queen City Coach Co., 225 N.C. 537, 35 S.E.2d 609.

This is an action brought to recover possession of demised premises before the expiration of the term, upon allegation of a forfeiture for the nonpayment of rent. Hence a tender of the rent in arrears before judgment barred further proceedings in the cause. G.S. § 42-33. On this point plaintiff cites and relies on Midimis v. Murrell, 189 N.C. 740, 128 S. E. 150, but that case is clearly distinguishable and does not control decision here.

The notice to vacate served on defendants does not appear of record. If it is in conformity with the allegation in the complaint, it is insufficient.

In short, the facts found by the court below sustain the judgment entered. It must therefore be

Affirmed.