Hicks v. Kenan.

MOTION TO AFFIRM. ON THE MERITS. MOTION TO AFFIRM. (338) Plaintiff moved in this Court to affirm the judgment upon the ground that defendant had not stated her exceptions nor assigned errors, as directed by Rule 27, of this Court. The Code, section 550, required, and it is the law now, that the appellant in his case on appeal should "state separately, in articles numbered, the errors alleged." Rule 27 is to the same effect. Clark's Code, p. 920. It provides that "every appellant shall set out, in the statement of the case served on appeal, his exceptions to the pleadings, rulings and judgment *Page 278 of the court, briefly and clearly stated and numbered. No other exceptions than those set out or filed, and made a part of the case or record, shall be considered by This Court," with certain reservations therein specified. The statute and rule are plainly worded and should be easily understood. They require an assignment of the errors relied on to be tabulated and inserted in the case or record, preferably at the end. This is a reasonable requirement, and a usual one in appellate proceedings. Many courts in other jurisdictions prescribe as the penalty for non-observance, dismissal of the appeal. We are not disposed to enforce the rules of this Court harshly, but with all the leniency consistent with the prompt and orderly transaction of the business of the Court. It was clearly intended that the statute and rule should be observed. Compliance with them will greatly facilitate the hearing and decision of cases upon their real merits. It will be best for counsel, the court and suitors, if due heed is given to the duty of appellants in this respect. This Court has more than once called attention to this provision of the law, and has endeavored to impress upon those concerned, the importance of preparing cases in accordance therewith. Taylor v. Plummer,105 N.C. 56; McKinnon v. Morrison, 104 N.C. 354; Wilson v. Wilson,125 N.C. 525; State v. Blankenship, 117 N.C. 808. Many of the records in this Court show a strict compliance with the rule, and this is sufficient evidence of the fact, not only that it has not escaped (339) the attention of the bar, but that its provisions are well understood. We hope a word to the wise and prudent practitioner will be quite sufficient, and that in the future the transcripts sent to this Court will be entirely free from this defect. In this case the exceptions have been separately stated and numbered, though they are not brought together at the end of the case. While this is not a strict compliance with the statute and rule, the error intended to be assigned is so plainly apparent that we deny the motion, but, at the same time, we have deemed it a fit occasion to again remind members of the bar that there still exists the necessity of preparing cases on appeal in accordance with the simple requirement of the statute, the importance of which has been emphasized by formulating its substance into a rule of this Court. We deny the motion, and the case will now be heard upon its merits. Motion denied. ON THE MERITS.