Abernathy v. Withers

Davis, J., (after stating the case as above) We are unable to see the remotest analogy between this case and that of Allen v. Griffin, 98 N. C., 120, relied on by counsel for appellant. There, tho case on appeal was settled by the Court, and presented, concisely and clearly, the matter in controversy, and the alleged ground of error — it was apparent in that case, and upon the face of the case, stated by the Court, and did not have to be pointed out in this Court for the first time; but here, it is sought, for the first time, to assign some error in the finding of the referee, which was not excepted to, and about which, so far as we can see, there was never any dispute or controversy, and which was never brought to the attention of the referee, or passed upon by the Court below. This will not do. Whissenhunt v. Jones, 80 N. C., 348; Neal v. Mace, 89 N. C., 171; The Code, § 550; Manufacturing Co. v. Simmons, 97 N. C., 89, and the many cases cited. There is no error. Judgment affirmed.