Jones v. City of High Point

The exceptions are properly grouped at the end of the case on appeal as required by rule 19 (2). The first two exceptions are for refusal to exclude certain evidence from the jury. But the case on appeal, as settled by the judge, does not show that any exception was taken to the admission of such evidence, nor that any motion was afterwards made to withdraw the evidence from the jury, nor that such motion was refused. Exceptions to the evidence must be taken during the trial, in apt time. If not so taken, setting them out, as assignments of error, can not avail anything. Lowe v. Elliott, 107 N.C. 720;Patterson v. Mills, 121 N.C. 268; Wilson v. Lumber Co., 131 N.C. 163.

The fourth exception was that the court permitted the jury to consider the above evidence, but as there was no exception to its admission, nor motion to withdraw it from the jury or any prayer for instruction in regard to it, and it not being evidence that was made incompetent by statute, the defendant can not raise this exception for the first time in his assignments of error. He seems to have been perfectly content with it, until after verdict.

The third exception is for "the refusal of the court to set aside the verdict because that it is not supported by the evidence." It does not appear that any motion to that effect was made and refused. Besides, an allegation that a verdict is against the weight of evidence is a matter not reviewable on appeal. Edwards v. Phifer, 120 N.C. 406, and cases cited. And an exception that there was no evidence (373) can not be considered unless a motion to that effect is made before the case is submitted to the jury. This has been held by a long line of decisions. S. v. Wilson, 121 N.C. 657; S. v. Harris, 120 N.C. 577, and numerous cases there cited. S. v. Furr, 121 N.C. 608; PrintingCo. v. Herbert, 137 N.C. 319; S. v. Holder, 133 N.C. 712.

There being no errors upon the face of the record proper, the judgment is

Affirmed.

Cited: Pearson v. Clay Co., 162 N.C. 226.