Ausband v. Pack, 244 N.C. 694 (1956)

Oct. 31, 1956 · Supreme Court of North Carolina

244 N.C. 694

FRANK C. AUSBAND, Receiver of SOUTHSIDE BUILDING SUPPLY CO., v. HARRELL V. PACK, Trading as SUPERIOR CONSTRUCTION COMPANY.

(Filed 31 October, 1956.)

Appeal and Error § 19—

Questions not presented by exceptions duly noted in tbe record will not be considered.

Johnson, J., not sitting.

Appeal by defendant from Phillips, J., 19 March, 1956, Term, Forsyth.

Plaintiff alleged defendant was indebted to him in the sum of $1,928.60 with interest from 21 August, 1954, for goods purchased in 1953 as shown on an itemized statement of account. Defendant admitted making the purchases as shown by the account, pleading payment as his defense.

An issue was submitted and answered:

“What amount, if any, is the plaintiff entitled to recover of the defendant?

“Answer: $1928.60 with interest from July 1954.”

Thereupon the court rendered judgment against defendant for $1,928.60 with interest from 21 August, 1954, as claimed in the complaint. Defendant appealed.

Oren W. McClain and Hastings, Booe & Mitchell for plaintiff appellee.

L. V. Scott for defendant appellant.

Per Curiam.

The only assignment of error is to the judgment. It is not perceived how defendant can be prejudiced by limiting the interr est to 21 August, the date claimed by plaintiff, instead of July, as fixed by the jury.

In his brief appellant states the questions presented as:

“1. Did the Court fail to explain the law arising on the evidence in the case?

“2. Did the Court instruct the jury fully as to the burden of proof?

“3. Did the charge to the jury satisfy the requirements of Chapter 1, Section 180 of the General Statutes of North Carolina?”

The record shows no exceptions on which to predicate these questions. The brief of appellant refers to neither exceptions nor assignments of error.

No error.

Johnson, J., not sitting.