Boyer v. Jarrell

AlleN, J.

Tbe plaintiff moves in this Court to affirm tbe judgment upon tbe ground tbat there are no exceptions in tbe record as a basis for tbe assignments of error, and tbe motion must be allowed.

“Tbe object of an assignment of error is not to create a new exception, which was not taken at tbe bearing, but to select from those which were taken such as tbe appellant then relies on after be has given more deliberate consideration to them than may have been possible during tbe progress of tbe trial or bearing. Tbe assignment of error, therefore, must be based upon tbe exception duly taken at tbe time it was due in, tbe orderly course of procedure, and should coincide with and not be more extensive than tbe exception itself. In other words, no assignment of error will be entertained which has not for its basis an exception taken in apt time.” Harrison v. Dill, 169 N. C., 544.

• Tbe exception to tbe judgment “Is not sufficient to bring up for review tbe findings of tbe judge. Tbe alleged errors should be pointed out by specific exceptions as to findings of fact as well as law. Findings of fact by tbe judge are binding on us where supported by evidence, and when it is claimed tbat such finding is not supported by any evidence, tbe exceptions and assignments of error should so specify. Such objection cannot be taken for tbe first time in this Court. Joyner v. Stancill, 108 N. C., 153; Hawkins v. Cedar Works, 122 N. C., 87.” Sturtevant v. Cotton Mills, 171 N. C., 120.

Tbe defendant has, however, lost nothing by failing to enter tbe exceptions, because tbe findings of fact are supported by evidence, and therefore conclusive on us, and they destroy tbe defense alleged in tbe answer and amended answer.

Tbe objection that tbe court did not .examine tbe evidence is contradicted by the recital in tbe judgment, wbicb is, “and tbe court having duly considered tbe evidence produced in tbe cause.”

There is no exception to tbe ruling of bis Honor striking out tbe amended answer, wbicb tbe referee permitted to be filed, but if exception bad been entered it would amount to nothing, because tbe judge has found tbe facts against tbe defendant on tbe matters alleged in tbe amended answer as a defense.

Affirmed.