Davenport v. Travelers Indemnity Co.

MALLARD, Chief Judge. This trial was by the court without a jury. Defendant has four assignments of error, but none of them is based on an exception duly noted in the record and numbered in accordance with Rule of Practice in the Court of Appeals No. 21. In the appeal entries it is stated that the defendant “in apt time objects and excepts to the Findings of Fact, Conclusions of Law and Judgment entered thereon,” and this is the only place in the record that the defendant excepted. The defendant does not refer to this or any other exception in its assignments of error. An assignment of error must be based upon an exception duly noted; otherwise it is ineffectual. Hunt v. Davis, 248 N.C. 69, 102 S.E. 2d 405 (1958) ; Campbell v. McNeil, 15 N.C. App. 559, 190 S.E. 2d 383 (1972) ; Bost v. Bank, 1 N.C. App. 470, 162 S.E. 2d 158 (1968). Furthermore, defendant made a broadside exception in its “Appeal Entries” to the “Findings of Fact, Conclusions of Law and Judgment entered thereon.” This broadside exception in the appeal entries does not bring up for review the findings of fact or the evidence on which they were based. Sweet v. Martin, 13 N.C. App. 495, 186 S.E. 2d 205 (1972). However, the appeal itself was sufficient to present the record proper for review and to raise the question whether error of law appears on the face of the record. In re Appeal of Broadcasting Corp., 273 N.C. 571, [574] 160 S.E. 2d 728 (1968) ; 1 Strang, N. C. Index 2d, Appeal and Error, § 28. A review which is limited to the face of the record proper presents the questions whether the facts found support the judgment and whether the judgment is regular in form, but it does not present for review any question as to the findings of fact or the sufficiency of the evidence to support the findings of fact. Fishing Pier v. Town of Carolina Beach, 274 N.C. 362, 163 S.E. 2d 363 (1968) ; 1 Strong, N. C. Index 2d, Appeal and Error, § 26; We have reviewed the record proper and are of the opinion that the judgment in this case is regular in form, that the facts found by the court support the conclusions of law in the judgment, and that no prejudicial error appears therein. No error. Judges Brock and Britt concur.