#### W. C. JONES and ED. STEELE et al. v. CITY OF HIGH POINT.

(Filed 2 November, 1910.)

1. Objections and Exceptions — Evidence—Admissibility—Appeal and Error — Procedure.

Exceptions to the admissibility of evidence must be taken in apt time during the trial, and when the record discloses they were taken for the first time in grouping the exceptions on appeal under Rule 19 (2) they will not be considered.

*3722. Appeal and . Error — Verdict—Set Aside — Evidence—Procedure.

For the Supreme Court to consider an exception to refusal of the trial court to set a verdict aside for the lack of evidence to support it, the record must show that a motion in the lower court to that effect had been made and refused, before the case was submitted to the jury.

Appeal by defendant from W. J. Adams, J., at tbe June Term, 1910, of Gujlfobd.

Tbe facts are sufficiently stated in tbe opinion of tbe Court.

King & Kimball for plaintiff.

W. P. Ragan and G. 8. Bradshaw for defendant.

ClabK, C. J.

Tbe exceptions are properly grouped at tbe end of tbe case on appeal as required by rule 19 (2). Tbe first two exceptions are for refusal to exclude certain evidence from tbe jury. But tbe case on appeal, as settled by tbe judge, does not sbow tbat any exception was taken to tbe admission of sucb evidence, nor tbat any motion was afterwards made to withdraw tbe evidence from tbe jury, nor tbat sucb motion was refused. Exceptions to tbe evidence must be taken during tbe trial, in apt time. If not so taken, setting tbem out, as assignments of error, cannot avail anything. Lowe v. Elliott, 107 N. C., 720; Patterson v. Mills, 121 N. C., 268; Wilson v. Lumber Co., 131 N. C., 163.

Tbe fourth exception was tbat tbe court permitted tbe jury to consider tbe above evidence, but' as there was no exception to its admission, nor motion to withdraw it from tbe jury or any prayer for instruction in regard to it, and it not being evidence tbat was made incompetent by statute, tbe defendant cannot raise this exception for tbe first time in bis assignments of error. He seems to have been perfectly content with it, until after verdict.

Tbe third exception is for “tbe refusal of tbe court to set aside tbe verdict because tbat it is not supported by tbe evidence.” It does not appear tbat any motion to tbat effect was made and refused. Besides an allegation tbat a verdict is against tbe weight of evidence is a matter not reviewable on appeal. Edwards v. Phifer, 120 N. C., 406, and cases cited. And an *373exception that there was no evidence cannot be considered unless a motion to that effect is made before the case is submitted to the jury. This has been held by a long line of decisions. S. v. Wilson, 121 N. C., 657; S. v. Harris, 120 N. C., 577, and numerous cases there cited. S. v. Furr, 121 N. C., 608; Printing Co. v. Herbert, 137 N. C., 319; S. v. Holder, 133 N. C., 712.

There being no errors upon the face of the record proper, the judgment is

Affirmed.