Donnell v. Cox, 240 N.C. 259 (1954)

May 5, 1954 · Supreme Court of North Carolina

240 N.C. 259

G. S. DONNELL, t/a EASTERN OIL TRANSPORT COMPANY, v. E. R. COX and MAMIE COLE COX, t/a COX AUTO SERVICE.

(Filed 5 May, 1954.)

1. Appeal and Error § 24—

An assignment of error to the findings of fact by tbe court below must be supported by an exception to such facts.

2. Appeal and Error § 40d—

When no exception is taken to tbe findings of fact it will be presumed that tbe findings are supported by the evidence.

Appeal by defendant Mamie Cole Cox from Burney, J., October Term, 1953, of New HaNoveb.

This is a civil action to recover from tbe defendants tbe sum of $883.17 for petroleum products sold and delivered.

Tbe defendants are citizens and residents of Ricbmond County. Tbe summons purports to bave been duly served on both defendants and a copy of tbe complaint delivered to them on 13 January, 1953. No answer was filed and judgment by default final was entered on 3 March, 1953, by tbe Assistant Clerk of tbe Superior Court of New Hanover County.

Tbe defendant Mamie Cole Cox filed a motion before tbe Clerk of tbe Superior Court of New Hanover County on 9 July, 1953, to set aside tbe judgment on tbe ground that no summons bad been served on ber. Tbe motion was denied and sbe appealed to tbe Superior Court.

Tbe matter came on for bearing in tbe Superior Court and bis Honor found tbe following facts: Tbat tbe summons was duly “issued from tbe Superior Court in New Hanover County on tbe 12tb day of January, 1953, directed to tbe Sheriff of Ricbmond County, and the Sheriff of Ricbmond County, through bis duly appointed and qualified deputy sheriff, namely: J. J. Heeney, served upon tbe defendant, Mamie Cole Cox, on tbe 13th day of January, 1953, a copy of tbe summons and a copy of tbe duly verified complaint by reading tbe summons to and delivering a copy of tbe summons and a copy of tbe complaint to tbe defendant, Mamie Cole Cox.”

Whereupon, tbe court denied the motion and affirmed tbe order of tbe Clerk of tbe Superior Court of New Hanover County. Tbe defendant Mamie Cole Cox appeals, assigning error.

Stevens, Burgwin & McGhee for plaintiff, appellee.

M. 0. McLeod for defendant, appellant.

Pee CueiaM.

Tbe appellant assigns as error tbe findings of fact by tbe court below. However, tbe assignment is not supported by an exception to snob findings, therefore, it is feckless. Worsley v. Rendering Co., 239 N.C. 547, 80 S.E. 2d 467; Wyatt v. Sharp, 239 N.C. 655, 80 S.E. 2d 762. Moreover, when no exception is taken to findings of fact, they are presumed to be supported by the evidence and are binding on appeal. Wyatt v. Sharp, supra, and cases cited therein.

The ruling of the court below is

Affirmed.