Spivey v. Boyce

Bobbitt, J. There was plenary evidence to support the jury’s finding that plaintiff’s intestate came to her death “as a result of the negligence of defendants Boyce, as alleged in the Complaint.” Too, there was plenary evidence to support the jury’s finding that plaintiff is entitled to recover damages from defendants Boyce in the sum of $20,000.00. Careful consideration of assignments of error based on exceptions brought forward in the case on appeal served in apt time on plaintiff, relating to plaintiff’s action against defendants Boyce, have been considered. Suffice to say, none discloses prejudicial error or requires discussion. [633] On account of the failure of defendants Boyce to serve a case on appeal on Allen Jeanette Williams within the time provided therefor, there is no case on appeal as between defendants Boyce and Allen Jeanette Williams. Little v. Sheets, 239 N.C. 430, 80 S.E. 2d 44, and cases cited. The (Boyce-plaintiff) case on appeal appearing in the transcript before us cannot be considered in determining the rights of defendants Boyce and Allen Jeanette Williams inter se. Absent exceptions duly taken and set forth in a case on appeal served in apt time, there is no basis for consideration of certain assignments of error stressed by defendants Boyce, namely, (1) asserted error in the court’s allowance of the motion of defendant Allen Jeanette Williams for judgment of nonsuit as to the alleged cross action of defendants Boyce against her for contribution, (2) asserted error in the court’s denial of the motion of defendants Boyce for judgment of nonsuit as to the cross action of Allen Jeanette Williams against them, and (3) asserted error in the court’s refusal, upon trial of said cross action, to submit an issue as to Allen Jeanette Williams’ contributory negligence. Obviously, determination of such assignments of error would require a critical consideration of the evidence offered at the trial; and, absent a case on appeal, the evidence offered at the trial is not before us for consideration. Indeed, absent a case on appeal, whether such motions and rulings were made does not appear. “Exceptions which point out errors occurring during the progress of a trial in which oral testimony is offered or challenge the sufficiency of the evidence to support the facts found can be presented only through a ‘case on appeal’ or ‘case agreed.’ This is the sole statutory method of vesting this Court with jurisdiction to hear the appeal. Unless so presented, they are mere surplusage without force or effect and must be treated as a nullity.” Hall v. Hall, 235 N.C. 711, 714, 71 S.E. 2d 471; Russos v. Bailey, 228 N.C. 783, 47 S.E. 2d 22; Cressler v. Asheville, 138 N.C. 482, 51 S.E. 53. Even so, defendants Boyce contend the court erred in denying their motion to strike the fifth paragraph of the answer of defendants Williams and that error in this respect appears on the face of the record proper. The written motion of defendants Boyce to strike the portion (fifth paragraph) of said joint answer of defendants Williams in which they alleged defendants Boyce had settled with William H. Williams for the damage to his car, was first overruled by a formal order of November 8, 1961. The court then noted and signed exception taken by defendants Boyce to said order. At the pretrial conference, held at the trial term, the court again, by a formal order, overruled said writ [634] ten motion. Thereupon, defendants Boyce took a voluntary nonsuit as to (additional) defendant William H. Williams and again moved to strike the said fifth paragraph of the pleading filed jointly by defendants Williams. The court overruled this motion. The court then noted and signed exceptions by defendants Boyce to said rulings. Prior to the adoption of our Rule 4(a), Rules of Practice in the Supreme Court, 254 N.C. 783, 785, defendants Boyce could have appealed as a matter of right from the denial of their said motion. Under the present practice, they are entitled to bring forward from an adverse final judgment their exception (then noted and signed by the court) to the order (s) denying their said motion. It is noted that defendants Boyce, in their reply, categorically denied the allegations set forth in the said fifth paragraph of the joint answer of defendants Williams. Prejudice, if any, to defendants Boyce results solely from the reading of said fifth paragraph in the presence of the jury and of the reading of the denial thereof by defendants Boyce. Nothing appears to indicate evidence was offered in the presence of the jury bearing in any way on the subject of said allegations. Uncontradicted evidence, including her own testimony, is to the effect that Mrs. Boyce failed to stop in obedience to the stop sign; and, upon the uncontradicted testimony, the only reasonable conclusion that may be drawn is that the negligence of defendants Boyce was a proximate cause of the collision. The jury so found in their answers to the first and third issues. We pass, without decision or discussion, whether the court erred in refusing to strike said fifth paragraph. Suffice to say, we do not think it may be reasonably asserted that the jury, in answering the issues submitted, was in any way influenced or affected by the mere reading of said allegations and the denial thereof. Hence, we are of opinion, and so decide, that error, if any, in the denial of said motion to strike was not prejudicial. No error.