Boring v. Mitchell

Mallabd, C.J. Defendant asserts that the question involved on this appeal is: “Did the Court below commit reversible error in sustaining the [554] verdict of the jury and signing judgment declaring Sabrina Shehan, the infant child of the defendant, to be an abandoned child within the meaning of Chapter 48 of the General Statutes of North Carolina?” In this case, we are of the opinion and so hold that the trial court did not commit reversible error. Respondent does not now contend that prejudicial error was committed in transferring this case to the District Court. See G.S. 7A-242. Respondent’s assignment of error No. 4 relates to the trial court’s overruling of her demurrer ore tenus to the petition, which was as follows: “The defendant, through her counsel, demurs ore tenus on the grounds that the facts set out in the complaint do not allege sufficient facts to make out a case of abandonment.” In the case of Berry v. City of Wilmington, 4 N.C. App. 648, 167 S.E. 2d 531 (1969), we find the following: “In G.S. 1-128 it is provided, among other things, ‘The demurrer must distinctly specify the grounds of objection to the complaint, or it may be disregarded.’ This section applies to all demurrers, written or oral. Adams v. College, 247 N.C. 648, 101 S.E. 2d 809; Insurance Co. v. Blythe Brothers Co., 260 N.C. 69, 131 S.E. 2d 900. A demurrer which merely charges that the complaint does not state a cause of action is broadside and will be disregarded. Pratt v. Bishop, 257 N.C. 486, 126 S.E. 2d 597. ‘Also, a demurrer for failure of the complaint to state a cause of action is properly overruled when the demurrer does not point out any defect in the complaint which would entitle defendants tp a dismissal of the action.’ 6 Strong, N.C. Index 2d, Pleadings § 21, p. 337. McPherson v. Burlington, 249 N.C. 569, 107 S.E. 2d 147.” In the present case, the demurrer does not point out any defect in the petition but merely alleges that it does not state “sufficient facts to make out a case of abandonment.” It was not error to overrule this broadside demurrer. Respondent’s assignment of error No. 5 raises the question of whether it was elror for the trial court to allow petitioner’s motion to have the issue of abandonment decided by a jury. Respondent asserts that the petitioners waived their right to a jury and cite G.S. 7A-196 as authority. G.S. 7A-196 provides in pertinent part: [555] “(d) The failure of a party to file a demand as required by this section constitutes a waiver by him of trial by jury. A demand for trial by jury may not be withdrawn without the consent of the parties. Notwithstanding the failure of a party to demand a jury in an action in which demand might have been made of right, the court in its discretion, upon motion of a party, may order a trial by jury of any or all issues.” Upon motion of the petitioners for a jury trial, it was not error for the trial judge in his discretion to allow the motion. No abuse of discretion is alleged or shown. Assignments of error No. 7 and No. 9 relate to the denial of respondent’s motions for nonsuit made at the close of petitioner’s evidence and at the close of all the evidence. In the case of Pratt v. Bishop, 257 N.C. 486, 126 S.E. 2d 597 (1962), we find the following language: “Abandonment requires a wilful intent to escape parental responsibility and conduct in effectuation of such intent. In re Bair’s Adoption, 393 Pa. 296, 141 A. 2d 873. In Bair’s case the Pennsylvania Court said this: ‘A parent’s intent to abandon a child soon becomes evident, especially in the case of an infant, by reason of the inexorable circumstances attending its physical being. A child’s natural needs for food, clothing and shelter demand that someone immediately assume the attendant responsibility which an abandoning parent has ignored; and, that responsibility endures constantly. It does not await the capricious decision of an uncertain parent, perhaps, years later. -* * * 'Abandonment is not an ambulatory thing the legal effects of which a delinquent parent may dissipate at will by the expression of a desire for the return of the discarded child.’ * * * To constitute an abandonment within the meaning of the adoption statute it is not necessary that a parent absent himself continuously from the child for the specified six months, nor even that he cease to feel any concern for its interest. If his conduct over the six months period evinces a settled purpose and a wilful intent to forego all parental duties and obligations and to relinquish all parental claims to the child there has been an abandonment within the meaning of the statute.” In the present case, there was sufficient evidence in the light most favorable to the petitioners that respondent had wilfully for [556] saken her parental duties and had relinquished her parental claims. It was not error to overrule respondent’s motions of nonsuit. Respondent contends that it was error to submit the issue of abandonment to the jury with the final date of 10 September 1968. She contends that the statute requires an abandonment six months immediately prior to the institution of the proceeding. Summons in this case was not issued until 12 September 1968. Contested special proceedings are commenced in the same manner as civil actions. G.S. 1-394. A civil action is commenced by the issuance of summons. G.S. 1-88. This present action, therefore, commenced on 12 September 1968. “A new trial will not be granted for mere technical error which could not have affected the result,- but only for error which is prejudicial or harmful, amounting to the denial of a substantial right.” 1 Strong, N.C. Index 2d, Appeal and Error, § 47, p. 192. In the present case, there is absolutely no evidence that this two-day difference affected the result of the trial. Both dates are more than six months after the alleged abandonment. There is no evidence that Delores F. Mitchell did anything during those two days which would have affected the outcome of the trial. There is absolutely no showing that the respondent was in any way prejudiced by this technical error. In addition, respondent did not object to the submission of the issue. After the trial the respondent attempted to take exception to the issue submitted. This comes too late. In McIntosh, N.C. Practice 2d, § 1353, it is said: “It is sufficient if the issues submitted will allow the parties to present their contentions fully; and if a party is dissatisfied with the form of the issues or desires additional issues, he should raise the question at once by objecting or by presenting the additional issues. If the parties consent to the issues submitted, or do not object at the time or ask for different or additional issues, the objection cannot be made later; but it is not necessary to go through the formality of presenting an issue when the court has ruled that it would not be submitted, or has intimated that there was no evidence to sustain it.” (Emphasis added). Respondent also contends that the court misstated the evidence and thus committed prejudicial error. This misstatement of the evidence is asserted to have been when the court said that Peggy testified “that the papers were served upon Delores on 10 Septem [557] ber 1968.” This slight inadvertence was not called to the attention of the court at the time so that it could be corrected. The rule with respect to slight misstatements of the evidence is set out in State v. Goines, 273 N.C. 509, 160 S.E. 2d 469 (1968), where it is said: “Slight inadvertencies in recapitulating the evidence or stating contentions must be called to the attention of the court in time for correction. Objection after verdict comes too late.” The respondent also asserts that the trial judge committed prejudicial error in instructing the jury. We have carefully read the charge and find no prejudicial error therein. Defendant has abandoned assignments of error # 1, 2, 3, 6, and 8. There are other assignments of error brought forward and argued by respondent which are without merit and require no discussion. For the reasons stated, in the trial we find No error. Britt and ParKer, JJ., concur.