164 S.E. 233 | N.C. | 1932
Civil actions to recover damages for alleged negligent infliction of personal injuries, consolidated for purpose of trial, and tried in the General County Court of Buncombe County, March Term, 1932, heard on appeal to Buncombe Superior Court, April Term, 1932.
The record discloses that John A. Baker, his wife, Nettie A. Baker, and three of their minor children, Martha, Albert and Alice, were injured in an automobile collision with defendant's car on 30 August, 1931. Five separate suits were instituted in the General County Court by the plaintiffs, which were consolidated for purposes of trial. Nonsuits were entered in the cases of the two adult plaintiffs, and the issue of negligence, in the consolidated suits of the three minor children, was answered in favor of the defendant. A counterclaim was set up against Nettie A. Baker, owner of the car in which plaintiffs were riding, for damages to defendant and her car. On this counterclaim, the issue of negligence was answered "No," and that of contributory negligence "Yes." There was no appeal from the judgment denying recovery on the counterclaim.
On appeal to the Superior Court by plaintiffs, the nonsuit judgments in the cases of the two adult plaintiffs were reversed, and a new trial ordered in the suits of the three minor children for errors committed during the trial.
From these rulings, the defendant appeals. The General County Court of Buncombe County was established in 1929, pursuant to chapter 159, Public Laws 1929, which brought said county within the operation of the general statutes on the subject. Jones v. Oil Co.,ante, 328.
It is provided by 3 C. S., 1608(cc) that appeals in civil actions may be taken from the General County Court to the Superior Court of the county in term time for errors assigned in matters of law "in the same manner as is now provided for appeals from the Superior Court to the Supreme Court"; and from the judgment of the Superior Court an appeal may be taken to the Supreme Court "as is now provided by law." This means that in hearing civil cases on appeal from the General County Court, the Superior Court sits as an appellate court, subject to review by the Supreme Court. Cecil v. LumberCo.,
On appeal to this Court, it is neither essential nor desirable that the entire record in the Superior Court should be sent up, but only such *743
parts thereof as may be necessary to present the questions sought to be reviewed. Rule 19(1); Hilton v. McDowell,
Objections, which, upon reflection, can readily be seen to have no substantial merit, should be omitted from appellant's assignments of error (Thompson v. R. R.,
We have held in a number of cases that the rules, governing appeals to this Court, are mandatory and not directory. Pruitt v. Wood,
The following is the substance of what Hoke, J., speaking for the Court, had to say on the subject in Lee v. Baird,
The Constitution, Art. IV, sec. 8, empowers the Supreme Court "to review on appeal any decision of the courts below, upon any matter of law or legal inference"; and the decision sought to be reviewed is to be presented in accordance with the mandatory rules of the Supreme Court. Calvert v.Carstarphen,
In the instant case, there are twelve assignments of error, all of the same tenor, of which the following may be taken as typical: "Assignment of error No. 6: The defendant assigns as error the ruling of his Honor, H. Hoyle Sink, in sustaining plaintiffs' exception 28, as appears by the record. (R. p. 127.)" Turning to page 127 of the record, we find the following in the judgment of the Superior Court: "Plaintiffs' exception 28 is sustained and the judge of the county court is overruled. Defendant excepts. This constitutes defendant's exception No. 6." But what is plaintiffs' exception 28 and where can it be found? This requires a voyage of discovery through the record. In re Beard's Will, ante, 661; Sturtevantv. Cotton Mills,
Speaking to the question as to how assignments of error should be made and what they should contain, Hoke, J., delivering the opinion of the Court in Thompson v. R. R.,
Notwithstanding the condition of the record, we have examined the defendant's assignments of error — the course pursued in Taylor v.Hayes, supra — and have discovered no valid reason for disturbing the judgment *745
of the Superior Court. The laboring oar, which appellant must take in order to overcome the presumption against error, has not been successfully handled. Jackson v. Bell,
Affirmed.