Weaver v. Morgan

61 S.E.2d 916 (1950) 232 N.C. 642

WEAVER
v.
MORGAN, Sheriff, et al.

No. 382.

Supreme Court of North Carolina.

November 22, 1950.

Ottway Burton, Asheboro, for plaintiff appellant.

Ferree & Gavin, Asheboro, for defendants appellees.

WINBORNE, Justice.

The exception in the case in hand, is "to the foregoing findings of fact and judgment". This, as to findings of fact, is a broadside exception. It fails to point out and designate the particular findings of fact to which exception is taken, and it is insufficient to challenge the sufficiency of the evidence to support the findings, or any one, or more of them. Vestal v. Moseley Vending Machine Co., 219 N.C. 468, 14 S.E.2d 427.

When it is claimed that findings of fact made by the trial judge are not supported by evidence, the exceptions and assignments of error in relation thereto must specifically and distinctly point out the alleged errors. Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351, and cases cited; also Halifax Paper Co. v. Roanoke Sanitary District, 232 N.C. 421, 61 S.E.2d 378, ante; Johnson v. Barham, 232 N.C. 508, 61 S.E.2d 374, ante.

In the absence of proper exceptions to the finding of fact on which a judgment is based, an exception to the signing of the judgment is insufficient to bring up for review the findings of fact. Fox v. Cramerton Mills, 225 N.C. 580, 35 S.E.2d 869; Town of Burnsville v. Boone, supra.

However in the grouped assignments of error plaintiff has set out specific portions of the findings of fact to which exceptions are there stated. But these are apparently abandoned, since they are not brought forward in the appellant's brief filed in this Court. "Exceptions in the record not set out in appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned by him." Rule 28 of the Rules of Practice in the Supreme Court, 221 N.C. 544, p. 562.

Nevertheless, a reading of the record fails to show error in the findings of fact to which the above assignments of error relate.

The remaining portion of the exception is to the judgment, and the assignment of error based thereon. These present only the question as to whether, on the facts found, error in matters of law appears upon the face of the record. Culbreth v. Britt Corp., 231 N.C. 76, 56 S.E.2d 15; Terry v. Capital Ice & Coal Co., 231 N.C. 103, 55 S.E.2d 926, and cases cited.

And the assignment of error as stated in the grouping of assignments of error is "to the holding of the court that the petition and election was in all respects legal and valid and that a person only has to be a registered voter of Randolph County to be a valid petitioner, and that the plaintiff has not established a prima facie case to entitle him to a restraining order, the plaintiff excepts, and the judgment signed in this matter". Thus the challenge to validity of the election is expressly limited to and focused upon the point that the trial court erred in respect of the ruling as to who is a valid petitioner within the meaning of General Statutes § 18-124 (b), which is subsection b of Section 1 of Chapter 1084 of 1947 Session Laws of North Carolina. This is the sole question. This statute pertains to petitions requesting that an election be held for the purpose of submitting to the voters of the county the question of whether or not wine or beer or both shall legally be sold therein, and provides that the county board of elections, "upon the presentation to it of a petition signed by fifteen per cent (15%) of the registered voters of the county that voted for governor in the last [general] election requesting" such an election, shall call it for the purposes above stated.

The court below held that the words "15 percent of the registered voters of the county that voted for governor in the last general election", as used in the statute refers to the total number of votes cast for governor in the last general election, and not necessarily the identical persons who cast votes for governor in said election. This appears to be the fair and reasonable meaning of the statute.

Since the election laws of this State provide for a secret ballot, it would be impossible for a county board of elections to determine how or whether any particular voter voted for governor in the last general election. Hence, it is inconceivable that the General Assembly intended to do a vain thing.

Indeed, the findings of fact hereinabove stated show not only that the number of signers on the petition in question who were legally registered, but that the number of the signers who personally voted in the 1948 general election exceeded fifteen percent of the number of votes then cast for governor.

It is noted that appellant debates, in his brief, various other questions of law in respect of matters of law in the judgment from which appeal is taken. And while not presented by the assignments of error, a reading of the facts, in the light of pertinent statutes and decisions of this Court fails to show error upon the face of the record.

Attention is directed to the fact that in brief filed here, appellant groups on one page all cases cited, and in the text of the brief does not give the volume and page of any case cited, but follows each with the word "supra", thereby necessitating a checking with the list of grouped cases to find where any case is reported. This is not a compliance with Rule 28 of the Rules of Practice in the Supreme Court. 221 N. C. 544, at page 562.

Upon full consideration of the case as presented, error is not made to appear in the judgment from which appeal is taken.

Affirmed.