In re Collins, 226 N.C. 412 (1946)

May 22, 1946 · Supreme Court of North Carolina

226 N.C. 412

In the Matter of PAUL COLLINS, Deceased.

(Filed 22 May, 1946.)

Appeal and Ewor § 40a—

An exception to tlie judgment presents the single question whether the facts found and admitted are sufficient to support the judgment and does not present for decision whether the findings are supported hy evidence, and therefore when the findings of fact support the judgment, the judgment will be affirmed.

Appeal by petitioner from Bone, J., at February Term, 1946, of Guileoed (High Point Division).

Tbis is a proceeding brought by the petitioner, Henry G. Tyson, against the respondent, R. O. Starnes, wherein the said petitioner seeks to have revoked letters of administration on the estate of Paul Collins, deceased, issued to said respondent by the clerk of the Superior Court of Guilford County. The said clerk, after considering the evidence adduced before him, appointed said Starnes such administrator. After hearing the petition for revocation of the letters of administration, the clerk dismissed the petition and the judge, upon appeal to him, affirmed the dismissal of the petition by the clerk. From the judgment of the judge, affirming the action of the clerk, the petitioner appealed to the Supreme Court for errors assigned and to be assigned. Upon appeal to the Supreme Court the petitioner makes but the single assignment of error, “1. For that His Honor signed and rendered the judgment in favor of the respondent as set forth in the petitioner’s Exception No. 1.”

Ehringhaus & Ehringhaus and Gold, McAnally & Gold for petitioner, appellant,

J. M. Broughton, Harriss H. Jarrell, and James B. Lovelace for respondent, appellee.

Schenck, J.

The one exception to the judgment presents but the single question, whether the facts found and admitted are sufficient to support the judgment. Shuford v. Building & Loan Asso., 210 N. C., 237, 186 S. E., 352; Wilson v. Charlotte, 206 N. C., 856, 175 S. E., 926.

It is insufficient to bring up for review the findings of fact or the evidence upon which such facts are based. When the only assignment of error is based on appellant’s exception to the judgment and the judgment is supported by the findings of fact, the judgment will be affirmed. Rader v. Coach Co., 225 N. C., 537, 35 S. E. (2d), 609. An exception to the judgment affirming the judgment below is insufficient to bring up for review the findings of fact, or the competency and sufficiency of the evidence to support the findings and conclusions of law. Fox v. Mills, Inc., 225 N. C., 580, 35 S. E. (2d), 869. An exception to the judgment presents the single question whether the facts found and admitted are sufficient to support the judgment rendered. Lee v. Board of Adjustment, ante, 107. The findings of fact by the judge below are binding on the Supreme Court where supported by evidence, and where it is claimed that such findings are not supported by any evidence the exceptions and assignments of error must so specify, otherwise the question is not presented for decision of the Supreme Court. Wilson v. Robinson, 224 N. C., 851, 32 S. E. (2d), 601. There are in the record no exceptions taken by the appellant pointing out any specific error. The judgment is based on the findings by his Honor below and are presumed, in the absence of specific exceptions, to be supported by the evidence and are binding upon this Court. Wilson v. Robinson, supra; and since an exception to the signing of the judgment presents only the face of the record for inspection and review, and when the judgment is supported by the record the exception must fail. King v. Rudd, ante, 156. We have examined it in the instant case and are of the opinion, and so hold, that the findings of fact in the record support the judgment.

For the reasons stated, the judgment below is

Affirmed.