37 N.C. App. 732 | N.C. Ct. App. | 1978
Plaintiffs contend it was error for the superior court to dismiss their action because our Supreme Court had directed that the case “be remanded to the superior court for a trial de novo.” Britt v. Allen, 291 N.C. at 639, 231 S.E. 2d at 614. In making this contention, plaintiffs mistake the import of the Supreme Court’s directive. That directive did not render the Rules of Civil Procedure inapplicable to the further proceedings in this case. For plaintiffs to be entitled to a jury trial, it was still necessary that their action be sufficient to withstand defendant’s motions for dismissal under Rule 12 (b)(6) and under Rule 56.
We hold that defendant’s motion under Rule 56 for summary judgment was properly granted and therefore find it unnecessary to pass upon the additional question whether the trial court was also correct in dismissing plaintiffs’ action under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Plaintiffs’ claim for damages was based upon defendant’s breach of an alleged agreement to purchase plaintiffs’ farm at a foreclosure sale and to convey a portion of that land to plaintiffs. Such a contract falls within the statute of frauds, G.S. 22-2, and is void “unless said contract, or some memorandum or note thereof, be put in writing and signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized.” All of the materials presented at the hearing on
In view of our decision that summary judgment in favor of defendant was properly entered on the grounds noted above, we find it unnecessary to pass on plaintiffs’ two remaining assignments of error, since even had there been error in the rulings sought to be challenged by these assignments, summary judgment for defendant would nevertheless have been proper and would have been dispositive of the case. We do note, however, that one of these assignments of error relates to an order entered 21 July 1969 which struck portions of plaintiffs’ complaint on motion of defendant and the other relates to an order entered in January 1970 which denied plaintiffs’ motion to strike portions of defendant’s answer. The exceptions on which these assignments of error are based were within the scope of the first appeal of this case, which was heard in this court in 1971, the opinion in which is reported in 12 N.C. App. 399, 183 S.E. 2d 303. On that appeal, plaintiffs made the same assignment of error which they now again attempt to make to the court’s denial of their motion to strike portions of defendant’s answer, but they then presented no argument and cited no authority to support that assignment of error. It was, therefore, abandoned on the earlier appeal. As to the 21 July 1969 order which allowed defendant’s motion to strike portions of plaintiffs’ complaint, plaintiffs noted an exception in the record but failed on the first appeal to make this exception the basis of an assignment of error. Our appellate procedure makes no provision for “holding in abeyance exceptions made at a former trial beyond the time allowed by law for appeal.” Howe v. Hall, 128 N.C. 167, 169, 38 S.E. 734, 735 (1901); accord, Riley v. Sears, 156 N.C. 267, 72 S.E. 367 (1911).
The judgment dismissing plaintiffs’ action is
Affirmed.