Greene v. Dishman, 202 N.C. 811 (1932)

June 15, 1932 · Supreme Court of North Carolina

202 N.C. 811

CONLEY GREENE, Administrator, v. PRESS DISHMAN et al.

(Filed 15 June, 1932.)

Appeal and Error E c — Assignment of error should show the question sought to he presented without the necessity of searching through the record.

Assignments of error to rulings of the court on a question of evidence should set out the testimony, in substance at least, and assignments of error as to other rulings should set out the attendant facts and circumstances, so that the court may determine the question'sought to be presented without searching through the record.

Appeal by defendants from MacBae, Special Judge, at November Special Term, 1931, of'’Watauga.

Civil action to recover tbe value of certain personal property belonging to tbe estate of R. W. Guy, wbicb, it is alleged, tbe defendants converted to tbeir own use before tbe appointment of plaintiff as administrator of tbe estate of tbe deceased.

From a verdict and judgment in favor of tbe plaintiff, tbe defendants appeal.

Bingham,, Linney & Bingham for plaintiff.

Trivette & Holshouser and W. B. Lovill for defendants.

Stacy, 0. J.

Tbe record contains ten assignments of error, of wbicb tbe first and second may be taken as illustrative:

“1. Tbat tbe court erred in sustaining tbe objection of plaintiff as shown by exception No. 1, Record page 8.

“2. Tbat bis Honor committed error .as shown by exceptions 2 and 3, Record pages 8 and 9.”

It was said in Thompson v. R. R., 141 N. C., 412, 61 S. E., 286, tbat -a proper assignment, of error to tbe ruling of tbe court on a question of evidence requires tbe testimony to be set out, in substance at least, so its relevancy can be perceived. And as to other rulings, it is essential tbat tbe attendant facts and circumstances be stated so tbeir bearing on tbe controversy can be seen, to some extent, by reading tbe assignments themselves. See, also, Baker v. Clayton, ante, 741, and In re Beard’s Will, ante, 661.

“Tbe Court will not accept a mere colorable compliance, such as entering tbe ‘first exception is tbe first assignment of error/ etc. This would give no information whatever to tbe Court, for it would necessitate turning back to tbe record to see what tbe exception was. What tbe Court desires, and, indeed, the least that any appellate court requires, is that the exceptions which are bona fide presented to the Court for a decision, as the points determinative of the appeal, shall be stated clearly and intelligently by the assignment of errors, and not by referring to the record, and therewith shall be'set out so mu'ck of the evidence, or of the charge, or other matter or circumstance (as the case may be) as shall be necessary to present clearly the matter to be debated.” Rogers v. Jones, 172 N. C., 156, 90 S. E., 117; Myrose v. Swain, 172 N. C., 223, 90 S. E., 118.

It will readily be perceived that the assignments of error in the instant case fall short of the requirements of the rule. Lee v. Baird, 146 N. C., 361, 59 S. E., 876. Nevertheless, we have examined them and find none of sufficient merit to upset the verdict.

The plaintiff consents that the judgment may be modified so as to separate the liabilities of the defendants, charging each with the value of his or her conversion. This will be done in the Superior Court.

No error.