#### GEORGE W. JONES v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 17 November, 1910.)

1. Appeal and Error — Exceptions Grouped — Supreme Court Rules— Compliance.

Supreme Court rule 19 (2), requiring the appellant to group and number all the exceptions relied on and set them out immediately after the statement of the case, is not complied with by showing in the record the various exceptions numbered, but on different pages, when there is no assignment of errors at the end of the case, either before or after the judge’s signature; and the appeal will be dismissed under rule 20 upon the failure of appellant to comply with rule 19 (2).

*4202. Objections and Exceptions — Appeal and Error — Assignments of Error.

Attention is called to the distinction between “exceptions” and “assignment of errors.”

Brown, J., dissenting; Hoke, J., concurring in the dissent.

Appeal by defendant from W. R. Allen, J., at tbe May Term, 1910, of CumbeRLAND.

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

E. L. Brothers and Sinclair & Dye for plaintiff.

Rose & Rose for defendant.

Clark, C. J.

Tbe appellee moves to dismiss because tbe appellant bas failed to comply witb rule 19 (2) of tbis Court. Tbat rule prescribes:

> “19 (2) Exceptions grouped. — All tbe exceptions relied on, grouped, and numbered, shall be set out immediately after tbe statement of tbe case on appeal.” And rule 20 authorizes a dismissal of tbe case, if tbis rule bas not been complied witb.

It is immaterial whether tbe assignment of errors precedes or follows tbe judge’s signature to tbe case on appeal. What is required is tbat tbe appellant shall go through tbe case on appeal, and select such exceptions as be intends to rely on, and group them at tbe end of ease on appeal. Tbe assignment of errors may, but most often does not, embrace all tbe exceptions taken on tbe trial. Tbe assignment of errors are thus something distinct and separate from tbe exceptions taken on tbe trial. They embrace all tbe points, duly taken as exceptions, which tbe appellant thus notifies tbe appellee, and tbe appellate court tbat be intends to rely upon. It thus embraces such exceptions taken during tbe trial, which were duly noted, and which be intends to rely upon, and also tbe exceptions to tbe charge, ■ which are not required to be noted at tbe time, and in addition, if tbe appellant thinks proper, tbe exceptions tbat tbe court bad no jurisdiction, and tbat tbe complaint did not state a cause of action.

Tbe object of tbis rule, which was adopted, after tbe fullest consideration by tbe Court is (1) tbat tbe counsel on tbe other *421side may be notified exactly wbat propositions be will be called upon to debate, and may prepare bimself accordingly. When, as is often tbe ease, many of tbe exceptions are dropped, tbis enables counsel on both sides to better prepare themselves to discuss tbe real points in controversy. (2) It enables tbe Court to see at a glance, by turning to tbe assignment of errors wbat propositions of law are presented, and to grasp tbe case much more quickly.

Tbe rule is a most reasonable one, and tbe Court bas repeatedly enforced it and expressed its intention to rigidly adhere to it. Nothing could be more arbitrary than a principle or rule which should be enforced against some ligitants and not as to others.

In addition to rule 19 (2) above quoted, Eevisal, 591, requires tbe appellant to “state separately, in articles numbered, tbe errors alleged.” Eule 27 of tbis Court requires that tbe exceptions shall be “briefly and clearly stated, and numbered.” Tbis Court in Davis v. Wall, 142 N. C., 450, allowed a motion to dismiss for failure to comply with tbe above requirements, and added: “Tbe motion is allowed in tbe expectation that appellants hereafter will conform to these requirements. Sigmon v. R. R., 135 N. C., 182, and cases cited. Ordinarily, hereafter, such motions will be allowed, without discussing tbe merits of tbe case, as we have done in tbis instance.”

In Marable v. R. R., 142 N. C., 564, Walher, J., said: “Tbe defendant moved in tbis Court to dismiss the appeal under rule 20, for failure to comply with requirements of rule 19. A similar motion was made at tbis term, based upon substantially tbe same grounds, in Davis v. Wall, ante, 450, and we enforced tbe rules to the extent of dismissing tbe appeal in that case. We again specially direct tbe attention of tbe profession to those rules and their decision, as being very proper for their careful consideration when preparing cases on appeal.”

In Lee v. Baird, 146 N. C., 361, tbe same motion was made as in tbis case, and Hoke, J., very carefully and fully affirmed tbe right of tbe Court to prescribe rules, tbe necessity of tbe rules in question and held, as bad been repeatedly held before, that tbe rules of tbe Court were mandatory and not directory. We *422can add nothing to what was there so clearly stated. The appeal in that case was dismissed.

In Thompson v. R. R., 147 N. C., 412, the same rules 19, 19 (2), 20, 27, and Revisal, 591, were again fully discussed by HoTce, J., and the appeal was dismissed.

In Ullery v. Guthrie, 148 N. C., 418, the same rules were discussed and the Court said, “This is a reasonable and just rule, which obtains doubtless in all appellate courts, and is the result of experience which has shown the benefit of thus indicating at a glance to opposing counsel, and the Court as well, the propositions of law which will be debated. It imposes no burden on the appellant, thus to sift out of the numerous exceptions, taken out of abundant caution on the trial, those which he will rely upon, and discuss upon appeal. We can add nothing to what has been said by this Court, in Lee v. Baird, 146 N. C., 362. It is indispensable in all courts that there should be some rules of practice, else there will be hopeless disorder and confusion. It is, for the same reason, not so important, what the rules are as that the rules, whatever they may be, shall be impartially applied to all, and that changes shall be prospective, by amendment to the rules, and not retro-active by granting exemption to some, which has been denied to others.”

In Smith v. Manufacturing Co., 151 N. C., 261, Walker, J., says: “We must insist upon a strict compliance with the rule, which requires an assignment of the errors relied on in this Court. It is a most reasonable rule, because the appellant is thereby notified of the specific matters which will be involved in the appeal; it enables counsel to prepare their case with greater ease, eliminating all immaterial questions; and, lastly, but by no means the least of all, it places before the Court in condensed form the entire case, so that we can more readily understand the argument of counsel and consider the case more intelligently as the discussion before us progresses. But it is sufficient to say that it is the rule of this Court, which was adopted after mature consideration, and is far less drastic or exacting in its requirements than similar provisions in other appellate tribunals, where even an assignment of errors, strictly conforming to our rule, would not be tolerated for a moment. We have more than *423once beld, with, some degree of emphasis, that this, as well as the other rules of the Court, will be enforced, reasonably, of course, but according to their plain intent and purpose. In this ease it seems that the appellant failed to comply with the rule, which requires the errors, which were pointed out by exceptions taken during the course of the trial, to be grouped and numbered, or assigned in an orderly manner. We are therefore not permitted to consider the able and carefully prepared brief of appellant’s counsel, or to enter upon a consideration of the case upon its merits. It is our duty, though, under the statute, to examine the record. We have done so, and find no error therein. The appellee moved to affirm the judgment, under the rule as construed by this Court, in Davis v. Wall, 142 N. C., 450; Marable v. R. R., ib., 564; Lee v. Baird, 146 N. C., 361; Thompson v. R. R., 147 N. C., 412; Ullery v. Guthrie, 148 N. C., 417. As the ease is now presented to us, we must allow the motion, and affirm the judgment.”

In Pegram v. Hester, 152 N. C., 765, the same motion was made because “there are no assignment of errors in the record” and the Court, quoting, at length, from the opinion of Walker, J., in Smith v. Manufacturing Co., 151 N. C., 261, and citing other cases, affirmed the judgment on that ground. The same action has been taken per curiam in several other cases, including one other at this term. In the present case, in the printed record, which is somewhat more condensed than the manuscript record, exception 1, appears on page 9, exception 2 on page 15, exceptions 3 and 4 on page 16, exceptions 5, 6 and 7 on page 17, and exception 8 on page 18. There are no assignment of errors at the end of the case, either before or after the judge’s signature (which would be immaterial), thus showing neither to the opposite counsel or to this Court which of the exceptions will be relied upon. Indeed counsel frankly admitted that the rule had not been complied with. It is impossible to distinguish this case from those above cited, and from the cases in which the same action has been taken by a per curiam decision. As was said in Ullery v. Guthrie, 148 N. C., 418, “It is not so important what the rules are, as that the rules, whatever they may be, shall be impartially applied to all.”

*424As was said by Walker, J., in Smith v. Manufacturing Co., 151 N. C., 261, our rule, “which was adopted after mature consideration, is far less drastic or exacting in its requirements than similar provisions in other appellate tribunals, where even an assignment of errors, strictly conforming to our rule, would not be tolerated for a moment.” We have procured the rules from other courts, and upon examination of them find that this is strictly true.

In the United States Supreme Court the rule prescribes “a specification of the errors relied upon, which, in cases brought up by writ of error, shall set out separately and particularly each error asserted, and intended to be urged; and in cases brought up by appeal, the specification shall state, as particular as may be, in what the decree.is alleged to be erroneous. When the error alleged is the admission or rejection of evidence, the specification shall quote the full substance of the evidence admitted or rejected. When the error alleged is in the charge of the court, the specification shall set out the part referred to, totidem verbis, whether it be instructions given or instructions refused. When the error alleged is in a ruling upon the report of a master, the specification shall state the exception to the report and the action of the court upon it.”

Almost the same rule in the samé words is required in the United States Circuit Court of Appeals at Richmond, and also in the other United States Circuit Courts of Appeals. And rules to the same effect have been found upon examination to obtain in nearly all of our sister States.

The usual rule in other States is either in the exact language or to the same purport as the following rule expressed by the Supreme Court of Connecticut. “In every writ of error there must be a special assignment of errors, in which the precise matters of error or defect in the proceedings in the court below, relied on as grounds for reversal, must be set forth. No others will be heard or considered by the Court.”

Upon examination of the record proper, we find no error, and in accordance with the rules of this Court and the uniform action of this Court as set out in the cases above cited we must grant the motion to affirm the judgment. It admits of a mild *425surprise that after the above clear exposition of the rule, made in so many cases, and so clearly stated, with the intention of the court so firmly expressed and so repeatedly, to enforce the rule, that any case should again be brought to this Court without an assignment of errors as required.

Affirmed.

Beown, J.,

dissenting. I cannot concur in the ruling of the Court dismissing the appeal, affirming the judgment and denying to the defendant a right to be heard upon the merits, for alleged failure to comply with rule 19 (2) in respect to the assignment of errors.

It is said in the opinion of the Court in this case: “It is immaterial whether the assignment of errors precedes or follows the judge’s signature to the case on appeal. What is required is that the appellant shall go through the case on appeal, and select such exceptions as he intended to rely upon and group them at the end of the case on appeal.”

That has been done in this case as fully and particularly as it is possible to do it.

The exceptions relied upon by the defendant as assignments of error are all grouped together on pages 17 and 18 of the record, immediately preceding the judge’s signature to the case on appeal. There are only 19 pages to the entire record and page 19 is taken up exclusively with clerk’s certificate to trans-script of appeal and a copy of the appeal bond.

All the exceptions are taken to the charge of the court except one. That exception relates to the submission of an issue and is set out on page 9 of printed record.

This very exception is again carried over to page 18 of record and grouped with the others consecutively, one following the other and the one brought forward from page 9 constitutes the last exception or assignment of error on page 18.

There are eight in all, following consecutively, and they immediately precede the judge’s signature.

The Court says if they are picked out and grouped at end of the case on appeal the fact that they precede instead of follow the judge’s signature to case on appeal does not matter.

The counsel for appellant has picked out his exception taken *426to tbe issues on page 9 and brought it forward and grouped it with Ms other seven exceptions to the charge of the court at the very end of the case on appeal.

If the quotation I have made from the principal opinion in this case is to be the guide, and is to be seriously relied upon, then measured by it, I assert with entire deference that none of my associates on this Court, with their justly recognized and eminent ability as lawyers, can summarize, group and state the exceptions relied upon as assignments of error more definitely, clearly and conveniently for the information of the Court than has been done by counsel for appellants to the end of the case on appeal.

If what immediately precedes the judge’s signature had also been again copied immediately after it, there would have been merely a useless repetition, but there could have been raised no question of the sufficiency of the assignments of error. It is this useless repetition, I understand from the quotation I have made, to be held unnecessary.

In conclusion, I desire to have it understood that I gave my assent to the rule in question in good faith, but I think it should be enforced in a reasonable manner and in aceord with the reasons that prompted its enactment. Its enforcement should not be based upon bare technicalities, when it can be seen that the true spirit and purpose of the rule have been met and complied with. This has been more than done, I think, by appellant in this case. A fair compliance with the rule is necessary especially in large records to enable the Court to get at the points presented for its consideration. When that is fairly done we should be content, and not permit a bare technicality to deprive a litigant of his constitutional right of appeal.

The rule is intended to facilitate the hearing of appeals and is not made to hinder, delay or to get rid of them.

The rule was made as a convenience to this Court and to save much labor, which in view of the great increase in the business of the Court is a necessity. The members of the bar endeavor almost universally to comply with it, and to live up to its purpose and spirit. We should ask no more of them than that; otherwise the rule becomes oppressive and a denial of the right of appeal.

*427Wben tbe work has been done as intelligently as in tbis case, we can see at a glance wbat exceptions we are asked to pass on. They are all grouped at tbe end of tbe case on appeal and consecutively numbered. We do not bave to ransack tbe record to find tbem. No assignments of error could possibly be made to afford us any greater belp in examining tbe record tban those in tbis case.

Horas, J., concurs in tbis opinion.