Suits v. Old Equity Life Insurance Company

85 S.E.2d 602 (1955) 241 N.C. 483

Harold SUITS
v.
OLD EQUITY LIFE INSURANCE COMPANY.

No. 671.

Supreme Court of North Carolina.

February 4, 1955.

Brooks, McLendon, Brim & Holderness, by G. Neil Daniels, Greensboro, for defendant, appellant.

Smith, Moore, Smith & Pope, by Bynum M. Hunter, Greensboro, for plaintiff, appellee.

JOHNSON, Justice.

It is manifest the facts found by the court below disclose that the defendant and its predecessor were transacting business in the State of North Carolina within the meaning of G.S. § 58-164(e) and that the service of process under this statute was sufficient to meet the requirements of due process and hold the defendant amenable to the jurisdiction of the Superior Court of Guilford County. See Lunceford v. Commercial Travelers' Mut. Acc. Association, 190 N.C. 314, 129 S.E. 805; Travelers Health Ass'n v. Commonwealth of Virginia, 339 U.S. 643, 70 S. Ct. 927, 94 L. Ed. 1154; International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95, 161 A.L.R. 1057; Parmalee v. Iowa State Traveling Men's Ass'n, 5 Cir., 206 F.2d 518, certiorari denied 346 U.S. 877, 74 S. Ct. 125, 98 L. Ed. 384; Zacharakis v. Bunker Hill Mutual Insurance Co., 281 A.D. 487, 120 N.Y.S.2d 418; Annotation: 94 L. Ed. 1167, 1175.

The appeal seems to be predicated in the main upon assignments of error to the effect that the court erred in making findings of fact Nos. 5, 13, 18, and 20. But these assignments are not supported by exceptions previously noted as required by our rules. See Rules 19(3) and 21, Rules of Practice in the Supreme Court, 221 N.C. 544.

When it is claimed that findings of fact made by the judge are not supported by competent evidence, a litigant who would invoke the right of review must point out specifically the alleged error. This he must do by exception. The assignment of error alone will not suffice. Worsley v. S. & W. Rendering Co., 239 N.C. 547, 80 S.E.2d 467; Donnell v. Cox, 240 N.C. 259, 81 S.E.2d 664.

The function of the assignment of errors is to group and bring forward such of the exceptions previously made and noted in the case on appeal as the appellant desires to preserve and present to the Court. Moore v. Crosswell, 240 N.C. 473, 82 S.E.2d 208; Dobias v. White, 240 N.C. 680, 83 S.E.2d 785; Rawls v. Lupton, 193 N.C. 428, 137 S.E. 175. Therefore an assignment of error not supported by an exception will be disregarded. Moore v. Crosswell, supra; Donnell v. Cox, supra; State v. Gordon, N.C., 85 S.E.2d 322. This rule is mandatory and will be enforced ex mero motu. Anderson v. Wray Plumbing & Heating Co., 238 N.C. 138, 76 S.E.2d 458; Donnell v. Cox, supra; Pruitt v. Wood, 199 N.C. 788, 156 S.E. 126.

The only exception in the instant record is the general exception to the judgment. This brings here for review the single question whether the facts found support the judgment. It does not bring up for review "the findings of fact or the evidence upon which they are based." Hoover v. Crotts, 232 N.C. 617, 61 S.E.2d 705, 706; Bailey v. McPherson, 233 N.C. 231, 63 S.E.2d 559; Greene v. Spivey, 236 N.C. 435, 73 S.E.2d 488.

Here the findings of fact support the judgment. This suffices to work an affirmation of the judgment below. Further discussion is not necessary.

Nevertheless, we have examined the record and conclude that the determinative findings of fact are not subject to successful challenge. The record is free of prejudicial or reversible error and the judgment is in accord with the decided weight of authority.

The cases cited by the defendant are distinguishable or are not considered authoritative.

The judgment below is

Affirmed.