Barnette v. Woody

88 S.E.2d 223 (1955) 242 N.C. 424

Maude BARNETTE, Unmarried
v.
Mrs. Annie Laurie WOODY, Widow, Dr. Leslie B. Hohman and Dr. G. W. Gentry.

No. 745.

Supreme Court of North Carolina.

June 30, 1955.

John F. Matthews, Charles P. Green, Louisburg, and Davis & Davis, Roxboro, for plaintiff appellant.

Reade, Fuller, Newsom & Graham, Durham, and R. B. Dawes, Roxboro, and E. C. Bryson, Durham, for appellee Annie Laurie Woody.

Reade, Fuller, Newsom & Graham, and F. L. Fuller, Jr., Durham, for appellee Dr. Leslie B. Hohman.

Spears & Spears, Durham, and R. P. Burns, Roxboro, for appellee Dr. G. W. Gentry.

DENNY, Justice.

The appellant groups her twenty-four assignments of error based on a similar number of purported exceptions, but an examination of the record discloses that a large percentage of these purported exceptions appear nowhere in the record except under the assignments of error, and not a single one of the remaining exceptions is set out in the case on appeal and numbered, as required by Rule 21, Rules of Practice in the Supreme Court, 221 N.C. 558. Moreover, in many instances, the words "exception by plaintiff," which appear in the context of the case on appeal, and apparently being the exception upon which the appellant intended to rely in grouping her assignments of error, do not appear on the page indicated thereunder. Hence, it would require a tedious and time consuming voyage of discovery for us to ascertain upon what the appellant is relying to show error, and our Rules and decisions do not require us to make any such voyage. In re Will of Beard, 202 N.C. 661, 163 S.E. 748; Cecil v. Snow Lumber Co., 197 N.C. 81, 147 S.E. 735.

This Court has universally held that an assignment of error not supported by an exception is ineffectual. Rigsbee v. Perkins, N.C., 87 S.E.2d 926; State v. Howell, 239 N.C. 78, 79 S.E.2d 235; State v. Moore, 222 N.C. 356, 23 S.E.2d 31; Smith v. Dillon Supply Co., 214 N.C. 406, 199 S.E. 392; Rogers v. Jones, 172 N.C. 156, 90 S.E. 117; Thompson v. Seaboard Air Line R. Co., 147 N.C. 412, 61 S.E. 286. Moreover, the provisions of G.S. § 1-206, as amended by Chapter 150, Session Laws of 1949, and by Chapter 57, Session Laws of 1953, do not eliminate the necessity for setting out and numbering the exceptions relied upon in the statement of the case on appeal. Rule 21, supra. But, in the absence of any exceptions, or where they have not been preserved in accord with the requirements of our Rules, the appeal will be taken as an exception to the judgment. State v. Sloan, 238 N.C. 672, 78 S.E.2d 738; Gibson v. Central Mfrs' Mutual Insurance Co., 232 N.C. 712, 62 S.E.2d 320; Dixon v. Osborne, 201 N.C. 489, 160 S.E. 579. Therefore, the only question presented on this appeal is whether or not the court below committed error in sustaining the defendants' motions for judgment as of nonsuit.

An examination of the plaintiff's complaint leaves one in doubt as to whether she is seeking to recover on an action for malicious prosecution, abuse of process, or for false imprisonment. Likewise, judging from the brief filed in her behalf, her counsel seem doubtful as to what cause of action they are relying upon. In fact, they say in their brief "that the plaintiff's evidence has made out a case of actionable tort against the defendants and each of them and that it is immaterial whether the label of malicious prosecution or abuse of process or omission of duty be affixed to the case."

This action was begun two years, eleven months and twenty-one days after the plaintiff was discharged from the State Hospital, after having been under observation at that institution for seventy-six days and held not to show any evidence of a mental disorder. Hence, the three-year statute of limitations pleaded by the defendants, G.S. § 1-52, would not be a bar to an action for malicious prosecution or abuse of process. However, it would seem that the plea of the one-year statute of limitations, G.S. § 1-54, would be a bar to an action for false imprisonment. Jackson v. Parks, 216 N.C. 329, 4 S.E.2d 873.

Abuse of process consists in the malicious misuse or perversion of a civil or criminal writ to accomplish some purpose not warranted or commanded by the writ. Ellis v. Wellons, 224 N.C. 269, 29 S.E.2d 884; Melton v. Rickman, 225 N.C. 700, 36 S.E.2d 276, 162 A.L.R. 793; McCartney v. Appalachian Hall, 230 N.C. 60, 51 S.E.2d 886.

The distinction between an action for malicious prosecution and one for abuse of process is that malicious prosecution is based upon malice in causing the process to issue, while abuse of process lies for its improper use after it has been issued. In an action for malicious prosecution the plaintiff must prove malice, want of probable cause and termination of the prosecution or proceeding in plaintiff's favor. Abernethy v. Burns, 210 N.C. 636, 188 S.E. 97; Carson v. Doggett, 231 N.C. 629, 58 S.E.2d 609. However, the only essential elements of abuse of process are: First, the existence of an ulterior purpose and, second, an act in the use of the process not proper in the regular prosecution of the proceeding. Ledford v. Smith, 212 N.C. 447, 193 S.E. 722; Carpenter, Baggott & Co. v. Hanes, 167 N.C. 551, 83 S.E. 577.

In the instant case, however, the plaintiff's evidence clearly establishes the fact that the process which she alleges was maliciously sued out was used for the purpose for which it was intended and the result accomplished was warranted and commanded by the writ. This was not the case in either Davenport v. Lynch, 51 N.C. 545, or Getsinger v. Corbell, 188 N.C. 553, 125 S.E. 180, cited and relied upon by the plaintiff. Hence, in our opinion, the evidence adduced in the trial below is insufficient to support an action for abuse of process.

On the other hand, conceding, but not deciding, that the complaint alleges a good cause of action for malicious prosecution and is not demurrable on the ground of a misjoinder of causes of action, we have concluded that the plaintiff's evidence is insufficient to establish a conspiracy on the part of the defendants or to establish malice on their part or any one of them.

The task of passing upon the motions for judgment as of nonsuit has been somewhat complicated because counsel for appellant have quoted, in their brief, about as freely from the excluded evidence as they have from the evidence admitted in the trial below. They cite as authority for their right to do so, Whitmire v. Heath, 155 N.C. 304, 71 S.E. 313. It will be noted, however, that the evidence excluded in the last cited case should have been admitted and proper exception was preserved to its exclusion. Such is not the case on the record before us. Consequently, we have not considered the excluded evidence in passing upon these motions.

In view of the conclusions we have reached, we deem it unnecessary to discuss or consider the question of privilege, Jarman v. Offutt, 239 N.C. 468, 80 S.E.2d 248, or to determine whether or not the order of the Clerk, adjudging the plaintiff a fit subject for observation in the State Hospital, was a termination of the proceeding in favor of the defendants and, therefore, res judicata.

The separate judgments of nonsuit entered as to each defendant in the court below will be upheld.

Affirmed.