Fuquay v. Fuquay

232 N.C. 692 | N.C. | 1950

Stacy, C. J.

As tbe infant defendant was represented in tbe Superior Court by a guardian ad litem, presumably tbe attempted appeal should be regarded as one by tbe guardian, albeit be now designates bimself simply as “attorney for appellant.”

There are no exceptions to tbe judgment, only a grouping of five assignments of error, each of which ends with tbe notation: “This being defendant’s Exception No.” — 1, 2, 3, 4, 5. Perhaps the better description would be to say tbe record contains five exceptive assignments of error in reverse, or five assignments of error in reverse of exceptive. There are no exceptive assignments of error on tbe record.

In appellant’s brief, be says: “It will be observed tbat tbe appellant groups and sets forth five assignments of error. After a careful consideration of each and every of these assignments, and a careful examination of tbe eases bearing on each of said assignments, candor compels him to admit tbat there is no merit in any of them.” Yet as tbe court below suggested an appeal “tbe appellant respectfully submits tbe matter to tbe Court and prays tbat it review tbe rulings . . . and tbe judgment.”

This brief calls to mind tbe argument of a celebrated mountain lawyer in a murder ease some years ago, which ran as follows: “If Your Honors please, I am somewhat embarrassed in this case — my client more so than I am; he is over here in the Penitentiary under sentence of death. However, the re-cord is here; I have examined it; candor compels me to say I don’t see much wrong with it. Still, if you gentlemen can find any error or any ground upon which to grant him a new trial, I shall appreciate it and I am sure he will.” Took his seat, and much to his surprise, got a new trial, because it was discovered here that the jury had failed to designate in its verdict whether the crime was murder in the first or second degree. G.S. 14-17; S. v. Truesdale, 125 N.C. 696, 34 S.E. 646; S. v. Gadberry, 117 N.C. 811, 23 S.E. 477. In that case, however, there were exceptions on the record giving this Court authority to review the questions of law or legal inferences thereby presented. Const'., Art. IV, Sec. 8. And these were debated on brief.

Moreover, that was a criminal prosecution and a capital case in which the appeal itself was or could have been regarded as an exception to the judgment and to the sufficiency of the record to support it. Here, however, we have an appeal in a civil action where all assignments of error and “exceptions,” if they may be so designated, have been expressly abandoned or withdrawn by the appellant in his brief. There is nothing to retain the case on our docket. S. v. Hicks, ante, 520.

This Court is for the correction of errors and not for the approval of judgments pro forma. The Superior Court must take full responsibility for its orders, judgments and decrees. Affirmances here add nothing to their validity, force or effect. They are still orders, judgments and decrees of'the Superior Court in which no error has been made to appear or found on appeal.

The appellant’s brief negatives any question of law or legal inference upon which the attempted appeal might be predicated, or retained for consideration.

The case was submitted under Rule 10 without oral argument.

Attempted appeal dismissed.