Thompson v. Thompson

70 S.E.2d 495 (1952) 235 N.C. 416

THOMPSON
v.
THOMPSON et ux.

No. 377.

Supreme Court of North Carolina.

April 16, 1952.

Sam W. Miller, Asheboro, for defendants appellants.

Prevette & Coltrane, Asheboro, for plaintiff-appellee.

JOHNSON, Justice.

The agreed statement of case on appeal indicates that the defendants in challenging the proceedings below assigned five errors. Of these, however, only two are brought forward on brief. Therefore, the other three assignments of error, in support of which no argument is stated or authority cited, will be taken as abandoned. Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 562 et seq.; Rose v. Bank of Wadesboro, 217 N.C. 600, 9 S.E.2d 2; Dillingham v. Kligerman, 235 N.C. 298, 69 S.E.2d 500.

The remaining assignments, 2 and 5, will be stated and discussed in that order:

Assignment of Error No. 2.—Here the defendant assigns as error "that his Honor confirmed the report of the Commissioners notwithstanding the fact that the Commissioners failed to follow the orders contained in the consent judgment of Honorable Susie Sharp heretofore referred to, and the supplemental judgment of Honorable F. Donald Phillips when he appointed new commissioners in place of the ones who had resigned."

This assignment of error is supported by no specific exception—the only exception in the record being the general exception to the order as set out in the appeal entries. It thus appears that the assignment of error is fatally defective in failing to point out in what particular "the Commissioners failed to follow the orders" directing partition of the land. Hence, the assignment, like the exception appearing in the appeal entries, is broadside. Vestal v. Moseley Vending Machine Exchange, 219 N.C. 468, 14 S.E.2d 427. It is elementary that if a litigant would invoke the right of review, he must point out specifically and distinctly the alleged error. Weaver v. Morgan, 232 N.C. 642, 61 S.E.2d 916. At most, then, this assignment presents only the question whether error of law appears on the face of the record. Weaver v. Morgan, supra; Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351. See also State v. Williams, N.C., 70 S.E.2d 1. Here, the defendants urge that the report of the commissioners fails to show specifically that they took into consideration the value of the chicken house erected by the defendant Wesley Thompson on the share allotted to the plaintiff as directed in the judgment of partition. Nothing else appearing, this might be treated as error appearing on the face of the record. However, it further appears on the record that at the hearing below one of the commissioners, testifying as a witness for the defendants, said "we considered the value of the chicken house, the best I can tell, at $200." The record also indicates that while the evidence was sharply conflicting on the main question of equality of partition, there was substantial evidence tending to show that the division was fair and equal. It is elementary that the findings of fact by a trial court are conclusive on appeal if there be evidence to support them. Town of Burnsville v. Boone, supra. Accordingly, while decision as to this assignment of error turns on failure to observe established rules of appellate procedure, nevertheless it appears that the result would have been the same if the defendants had complied with the procedural requirements.

Assignment of Error No. 5.—Here the assignment is "that his Honor was in error in confirming the report of the Commissioners when the evidence shows that their unjustifiable delay in bringing in the report resulted in prejudice to the rights of the defendants."

This assignment of error, like Assignment No. 2, is not supported by specific exception. It is fatally defective in that it fails to point out in what particular the "delay in bringing in the report resulted in prejudice to the rights of the defendants." Therefore this assignment, also, is broadside and must be overruled. Weaver v. Morgan, supra; Town of Burnsville v. Boone, supra. The mere fact that the commissioners did not file their report within the statutory period of sixty days after notification (G.S. § 46-17) does not vitiate the report or preclude confirmation.

No error.