Bost v. Citizens National Bank

162 S.E.2d 158 (1968)

1 N.C. App. 470

Sue Morrison BOST (Widow), James V. Query and wife, Noreen M. Query, Mary Query Morse and husband, T. W. Morse, Dorothy Query Hepburn and husband, C. C. Hepburn, William M. Morrison and wife, Ann Morrison, and William M. Morrison, Administrator of the Estate of Henry C. Morrison, Deceased v. CITIZENS NATIONAL BANK, Administrator of the Estate of William McKee Morrison, Jr., et al.

No. 68SC168.

Court of Appeals of North Carolina.

July 10, 1968.

Certiorari Denied August 23, 1968.

*162 Williams, Willeford & Boger, by John Hugh Williams, Concord, for plaintiffs appellees.

Ottway Burton, Asheboro, for defendants Adelaide B. Cromartie, William King Cromartie, Gladys M. Lang and G. L. Lang, Jr.

No counsel (and no brief filed) for defendants Agnes Boger and Allen T. Boger, III.

MALLARD, Chief Judge.

The appellants Agnes Boger and Allen T. Boger, III, by their failure to file a brief are deemed to have abandoned their objections and exceptions, and their appeal is dismissed. Rules of Practice in the Court of Appeals, #28 and #48.

In the record there appears that which is designated, "Statement of Case on Appeal." This is frequently used as an introduction or brief summary of the "record on appeal." As a part of the record on appeal, it is not required. See Rule 19(a) of the Rules of Practice in the Court of Appeals of North Carolina, for what the record on appeal is to contain and how it should be arranged. That which appears in this "Statement of Case on Appeal" could have and should have been properly included in appellants' brief. Rule 28 of the Rules of Practice in the Court of Appeals. Appellants in their brief refer to the "facts" set out in the "Statement of Case on Appeal." There appears therein, among other things, the following apparent contradictions:

"At a date after January 22, 1968, the defendants' attorney, Ottway Burton, received a copy of the January 29, 1968 Calendar showing the case on the calendar. * * * The case was never on the trial calendar and the defendants had no notice that the case was going to be on the trial calendar until January 20, 1968, which was the same thing as no notice." (Emphasis Added)

The foregoing contradictory statements in a brief would not pose any question, but do when placed in the record on appeal, particularly when, as here, counsel stipulate that it is a part of the record on appeal. In this case the above statements are particularly significant because in this appeal the contention of the appellants Lang and Cromartie is that the case was not on the trial calendar and that the court should not have ordered the case to trial on Wednesday, 31 January 1968, in the absence of Mr. Burton, attorney for such defendants. It is stated in the record, as a fact found by the Judge, that pursuant to the rules of the Cabarrus County Bar Association, this case appeared on the calendar to be heard at the 29 January 1968 Session of Superior Court of Cabarrus County. We hold that this finding by the Judge must control over this contradictory statement appearing in the record. Blair v. Coakley, 136 N.C. 405, 48 S.E. 804.

Appellants Lang and Cromartie through their attorney Mr. Burton, contend that the case was never properly on the calendar at the 29 January 1968 Session of Superior Court of Cabarrus County because Mr. Burton did not receive notice that it was to be placed on the calendar before it was. This contention is without merit. Rule 22 of the Rules of Superior Court provide that, "The Court will reserve the right to determine whether it is necessary to make a calendar, and, also, for the dispatch of business, to make orders as to the disposition of causes placed upon the calendar and not reached on the day for which they may be set." Mr. Burton had knowledge on 20 January 1968 that this case was on the trial calendar and deemed it necessary to, and had time to write and did write, a letter to the Presiding Judge about it but felt that it was totally unnecessary to request a continuance. It is customary and proper for a lawyer to request a continuance when he has a conflict if he wants the case continued.

"Furthermore, a motion for continuance is addressed to the sound discretion *163 of the trial judge, and in the absence of manifest abuse of such discretion his ruling thereon is not reviewable." Becker v. Becker, 262 N.C. 685, 138 S.E.2d 507; Watters v. Parrish, 252 N.C. 787, 115 S.E.2d 1. In this case there was no motion to continue, and there is no abuse of discretion by the trial judge shown. "Continuances are not favored." Wilburn v. Wilburn, 260 N.C. 208, 132 S.E.2d 332. The only case cited by appellants in their brief, City of Randleman v. Hinshaw, 267 N.C. 136, 147 S.E.2d 902, is distinguishable from this case. It involved a failure of notice in accordance with statutory procedures of condemnation. Here we have a case on the calendar for a session of court, and counsel for defendants Lang and Cromartie did not move to continue trial of the case and did not appear at the call of the calendar or the trial although he admits he had knowledge on 20 January 1968 that the case was on the calendar for trial on 30 January 1968.

Appellants contend that the judge should have found other facts and that the evidence did not support the court's findings of fact in ordering the case tried or in the judgment dated 2 February 1968 or in its order denying the motion for a new trial. The appellants also object to the conclusions of law reached in the order of trial, in the judgment dated 2 February 1968, and in the order denying the motion for a new trial. The evidence in this case was submitted under Rule 19(d)(2), and appellants' brief does not comply with the provisions of Rule 19(d)(2) and the appeal is subject to being dismissed under Rule 48 for that it does not contain an appendix in which is set forth in succinct language with respect to those witnesses whose testimony is deemed to be pertinent to the questions raised on appeal, what they say the testimony of such witness tends to establish with citation to the page of the stenographic transcript in support thereof.

Defendants Lang and Cromartie contend that they were entitled to a jury trial. Upon an examination of the pleadings, we hold that the matter for determination by the court was whether the plaintiffs or the defendants owned the land involved herein under the terms of the will of W. M. Morrison, and this was not an issue of fact, but one of law involving the construction of the will of W. M. Morrison. Wells v. Clayton, 236 N.C. 102, 72 S.E.2d 16.

The exceptions, other than number eight, in this record on appeal do not comply with Rule 21 which requires that the exceptions shall be clearly stated and numbered. These are numbered but do not clearly state, other than Exception No. 8, to what they refer. An assignment of error is ineffectual if not based on a proper exception. Langley v. Langley, 268 N.C. 415, 150 S.E.2d 764.

However, we have carefully examined the record and the evidence and are of the opinion, and so decide, that there is ample evidence to support the necessary findings of fact, and the necessary findings of fact support the conclusions of law of Judge Exum ordering the case tried, and also the judgment dated 2 February 1968 and the order dated 9 February 1968 denying the motion for a new trial.

As to the appeal of Agnes Boger and Allen T. Boger, III, dismissed.

As to the appeal of the defendants Adelaide B. Cromartie, William King Cromartie, Gladys M. Lang and G. L. Lang, Jr., the judgment and orders of the Superior Court are

Affirmed.

BROCK and PARKER, JJ., concur.