TAYLOR v. PLUMMER, N.C., Judgment, Law, casemine.com

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Attorney(S)

Mr. J. N. Holding, for plaintiff. Mr. C. M. Busbee, for defendant.

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Smart Summary

Factual and Procedural Background

This case arises from a civil action tried before Judge Gilmer at the Fall Term, 1889, of Alleghany Superior Court. The defendant appealed the judgment rendered in the trial court. The opinion primarily addresses procedural aspects related to the appeal rather than the substantive facts of the underlying dispute.

Legal Issues Presented

Whether the judgment should be affirmed in the absence of exceptions stated in the case on appeal and absence of errors apparent on the face of the record.
Whether the failure to give certain special instructions requested by the defendant constitutes reversible error when such instructions were not properly requested in writing and in apt time, nor assigned as error in the case on appeal.
The procedural requirements for preserving exceptions and assignments of error on appeal under North Carolina law, specifically under The Code §§ 412 and 550 and Rule 27 of the Rules of Court.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Powell v. Railroad, 68 N.C. 395	Requirement that special instructions be requested in apt time (at the close of evidence).	Used to evaluate whether the defendant timely requested special instructions.
State v. Ballard, 79 N.C. 627	Exceptions to evidence and trial matters must be noted at the time or are waived.	Supported the rule that failure to note exceptions at trial results in waiver.
Scott v. Green, 89 N.C. 278	Same as above regarding exceptions and waiver.	Reinforced the procedural requirement for noting exceptions timely.
McKinnon v. Morrison, 104 N.C. 354	Appellant's duty to assign errors specifically in the statement of the case on appeal.	Clarified that failure to assign errors in the case on appeal waives exceptions.
State v. Bailey, 100 N.C. 528	Omission to charge is generally not error unless a requested instruction was refused.	Guided analysis on the necessity of requested instructions for error assignment.
Thornton v. Brady, 100 N.C. 38	Errors on the face of the record (process, pleadings, judgment) can be corrected without assignment of error.	Distinguished errors correctable without formal exception.
Moore v. Parker, 91 N.C. 275	Principles relating to contributory negligence and evidentiary sufficiency.	Referenced to support the court's view that there was insufficient evidence of contributory negligence to go to the jury.

Court's Reasoning and Analysis

The court found that no exceptions to the evidence or rulings, nor assignments of error, were set out in the case on appeal. There was no indication that the defendant was dissatisfied with the trial proceedings except for the fact of appeal itself. No errors appeared on the face of the record. The court emphasized the statutory and procedural requirements under The Code §§ 412 and 550 and Rule 27 of the Rules of Court, which require that exceptions be noted at trial or assigned as error in the case on appeal to be considered. Specifically, although the defendant requested special instructions, it was not shown that these requests were made in writing or in a timely manner, nor were exceptions taken or errors assigned regarding their refusal. The court explained that these procedural safeguards serve to prevent surprise and ensure fairness by requiring that objections be clearly stated and preserved for appellate review. Finally, the court noted that the evidence did not support a claim of contributory negligence sufficient to submit to the jury and that the charge given was correct.

Holding and Implications

Holding: The judgment of the trial court is AFFIRMED.

Implications: The decision confirms the strict adherence to procedural rules governing exceptions and assignments of error on appeal in North Carolina. Because the defendant failed to properly preserve any errors for review, the appellate court declined to disturb the trial court's judgment. This ruling does not establish new substantive precedent but reinforces the importance of procedural compliance for appellate review and affirms the finality of judgments absent properly preserved error.

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C. J. TAYLOR v. J. C. PLUMMER. Head-notes by CLARK, J.

Appeal — Exceptions — Rule 27.

1. Where there are no exceptions stated in the case on appeal, and no errors appear upon the face of the record, the judgment must be affirmed.

2. The refusal to give instructions, if asked in writing and in apt time, like the charge as given, is deemed excepted to ( The Code, § 412 [3]), but none the less it is the duty of the appellant to assign such as error in making up his statement of case on appeal ( The Code, § 550), and if this is not done, the exception is deemed waived. (Rule 27 [4]).

Defendant appealed.

CLARK, J.:

No exceptions to the evidence or rulings and no assignments of error are set out in the case on appeal. There is nothing to show that the defendant is dissatisfied with anything that occurred during the progress of the trial beyond the bare fact that he appealed; nor does any error appear upon the face of the record proper, as distinguished from the "case on appeal." By the settled rules of practice, the judgment must be affirmed.

It appears that the defendant asked the Court to give certain special instructions, which were not given — at least in the form asked. It does not appear that they were asked in apt time — i. e., at the close of the evidence ( Powell v. Railroad, 68 N.C. 395), nor that they were in writing, as required by The Code, § 415. Assuming, however, (57) that it did appear that the instructions were asked in writing and in apt time, no exception was noted to the failure to give them, and no assignment of error on that ground is stated in the case. The Code, § 550, requires the appellant to "cause to be prepared a concise statement of the case, embodying the instructions of the Judge as signed by him, if there be an exception thereto, and the requests of counsel of the parties for instructions, if there be any exceptions on account of the granting or withholding thereof, and stating separately, in articles numbered, the errors alleged." When the assignment of error or exception for failure to give an instruction asked is set out in the appellant's case, as required by this section, the Judge is put upon notice to give, fully, the charge on that point, and it may appear, if this is done, that there was no error, or that the instruction, though refused as asked, was given in substance. This being a Court for the correction of errors, the errors complained of must appear by exception noted, or error assigned, and be set out in the case on appeal. The provisions in this regard in the statute are easily observed and have been often construed. The rules of the Court, and the decisions, are explicit. The statutory regulations as to exceptions and assignment of error are intended to give equal rights to both sides, and to prevent surprise by springing unexpected objections and presenting points in this Court which would have been cured by a more careful and accurate statement of the case on appeal, in that particular, if the matter had been called to the attention of the other party by the appellant's statement of the case on appeal. This, too, avoids cumbering the transcript with needless fullness in immaterial matters as to which no exception is made.

In substance, these provisions are:

1. Exceptions to the evidence and all matters occurring on the trial, except the charge of the Court, must be noted at the time. The Code, § 412 (2). If not, they are waived. State v. Ballard, 79 (58) N.C. 627; Scott v. Green, 89 N.C. 278.

2. The charge and the refusal to give instructions asked, need not be excepted to at the time, but are deemed excepted to. The Code, § 412(3). But none the less, it is the duty of the appellant to assign specifically the errors in that regard, in making out his statement of the case on appeal. The Code, § 550; McKinnon v. Morrison, 104 N.C. 354, in which case the authorities are collected and reviewed.

3. An omission to charge on any point is not usually assignable as error, unless an instruction was asked and refused. State v. Bailey, 100 N.C. 528, and cases there cited.

4. Exceptions noted on the trial, and exceptions which, after the verdict, the losing party desired to assign to the charge, or to the refusal or granting of special instructions, must be set out by appellant in making out his statement of the case on appeal ( The Code, § 550, cited above), or they are deemed waived. No other exceptions than those set out "will be considered by the Court, except exceptions to the jurisdiction, or because the complaint does not state a cause of action, or motions in arrest of judgment for the insufficiency of an indictment." Rule 27 of the Rules of Court.

5. Errors upon the face of the record proper, i. e., process, pleadings, judgment, c. (as distinguished from errors committed in the process of the trial), will be corrected without assignment of error. The Code, § 957; Thornton v. Brady, 100 N.C. 38. These will be found, however, to fall almost necessarily into one of the exceptions stated in Rule 27, supra, i. e., defect of jurisdiction, defective cause of action or insufficiency of an indictment.

There are no errors assigned for our consideration in the case on appeal, and none are apparent from the face of the record. We may note, however, that the features of this case seem to place it (59) within the principles laid down in Moore v. Parker, 91 N.C. 275.

There was no evidence of contributory negligence sufficient to go to the jury, and the charge sent up is correct.

Affirmed.

Cited: Whitehurst v. Pettipher, ante, 42; Marsh v. Richardson, 106 N.C. 548; S. v. Parker, Ib., 714; Everett v. Williamson, 107 N.C. 211; S. v. Fleming, Ib., 909; Grubbs v. Ins. Co., 108 N.C. 479; Posey v. Patton, 109 N.C. 456; Emry v. R. R., Ib., 602; S. v. Black, Ib., 857; S. v. McKinney, 111 N.C. 685; Luttrell v. Martin, 112 N.C. 607; Marshall v. Stine, Ib., 698; Davis v. Duvall, Ib., 834; Cotton Mills v. Abernathy, 115 N.C. 409; S. v. Kiger, 115 N.C. 751; S. v. Adams, Ib., 783; Tillett v. R. R., 116 N.C. 940; S. v. Williams, 117 N.C. 754; S. v. Blankenship, Ib., 809; S. v. Downs, 118 N.C. 1243; S. v. Haynie, Ib., 1269; Bank v. Sumner, 119 N.C. 592; S. v. Pierce, 123 N.C. 749; Wilson v. Lumber Co., 131 N.C. 164; Printing Co. v. Herbert, 137 N.C. 319; Hicks v. Kenan, 139 N.C. 338; Alley v. Howell, 141 N.C. 116; Craddock v. Barnes, 142 N.C. 99; Sawyer v. Lumber Co., Ib., 163; Gaither v. Carpenter, 143 N.C. 243; S. v. Houston, 155 N.C. 434; Hodson v. R. R., 176 N.C. 496.

TAYLOR v. PLUMMER