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21 N.C. App. 536

Hawkins v. Hawkins

Court of Appeals of North Carolina · decided 1974-05-15

Relies on Lea v. . Bridgeman · Stancil v. Stancil · Vance v. Hampton

Decided 1974-05-15

BRITT, Judge.

¶1The record on appeal and defendant appellant’s brief do not comply with the rules of this court. Nevertheless, we will attempt to answer the two questions alluded to in the brief.

¶2The first question is stated in defendant’s brief as follows: “Did the Trial Court Commit Error When He Struck From Dependant’s Counterclaim ‘All of the Further Answer and Allegation of New Matter as a Counterclaim Consisting of Paragraph 1 Through 6’? (Exception 1, R p 20)”

¶3No Exception 1 appears on page 20 of the record. On pages 23 and 24 of the record, defendant purports to group her assignments of error. By assignment no. 1, she appears to contend that the court, by its order of 4 May 1973, erred in striking her first further answer and counterclaim for alimony. By assignment no. 2, she appears to contend that the court erred in striking all but paragraph one of her second further defense in which she set forth the deed of separation but asked that it be declared null and void. By assignment no. 3, she contends that the court erred in signing and entering the divorce judgment dated 30 October 1973.

¶4In her brief, defendant makes no reference to the second assignment of error stated in the record on appeal, therefore, it is deemed abandoned. McDonald v. Heating Co., 268 N.C. 496, 151 S.E. 2d 27 (1966). That being true, defendant’s second fur*538ther answer sets forth a deed of separation completely valid on its face, and all of her allegations attacking the deed of separation are stricken. The result is that the deed of separation negates the first further defense and counterclaim; therefore, we hold that defendant fails to show prejudicial error in the striking of her first further defense and counterclaim.

¶5The second question stated in defendant’s brief is as follows: “Did the Trial Court Commit Error by Signing and Entering the Judgment Dated October 30, 1973?” Defendant’s only argument on this question is that “there is no testimony in the record that would justify the court in entering the judgment granting an absolute divorce.”

¶6An appeal itself is an exception to the judgment and to any matter appearing on the face of the record proper. Stancil v. Stancil, 255 N.C. 507, 121 S.E. 2d 882 (1961). A sole exception to the judgment, or to the signing of the judgment, likewise presents the face of the record proper for review. Vance v. Hampton, 256 N.C. 557, 124 S.E. 2d 527 (1962). An exception to the judgment cannot present the question of the sufficiency of the evidence to sustain the verdict. Lea v. Bridgeman, 228 N.C. 565, 46 S.E. 2d 555 (1948). A review of the face of the record proper reveals no error. The record on appeal does not set forth the testimony presented at trial but it is the responsibility of. an appellant to make up and serve the record on appeal. 1 Strong’s N. C. Index 2d, Appeal and Error, § 36, p. 173 (1967).

¶7For the reasons stated, we conclude that defendant has failed to show prejudicial error.

¶8No error.

Judges Hedrick and Carson concur.
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