Opinion
No. 7519DC160
Filed 6 August 1975
1. Appeal and Error 26 — failure to except to findings In the absence of proper exceptions to the findings of fact, exceptions to the admission of evidence and the rulings of the judge in denying defendant's motions to dismiss are ineffectual, and an appeal presents for review only the question whether the findings of fact support the conclusions of law and the entry of the judgment.
2. Animals 3 — escape by cattle — damage to crops The trial court's findings supported its conclusions that defendant was negligent in allowing his cattle to escape and damage plaintiff's soybean crop and that plaintiff was damaged in the sum of $420 by defendant's negligence.
APPEAL by defendant from Grant, Judge. Judgment entered 23 January 1975 in District Court, ROWAN County. Heard in the Court of Appeals 6 May 1975.
No appearance by plaintiff.
Robert M. Davis, for defendant.
Judge HEDRICK dissenting.
Plaintiff brought this action alleging damages to his soybean crop by defendant's cattle, which were negligently allowed to escape from defendant's pasture. The case was tried before the judge without a jury. The trial judge made findings of fact and entered judgment that plaintiff recover the sum of $420.00 and court costs. Defendant appealed.
Under our Rules of Civil Procedure, G.S. 1A-1, Rule 38, the parties to a civil action may waive trial by jury. In all actions tried upon the facts without a jury, the trial judge shall find the facts specially and state separately his conclusions of law thereon, and direct the entry of an appropriate judgment. G.S. 1A-1, Rule 52. The trial judge's findings of fact have the force and effect of a verdict by a jury upon the issues involved. N.C. Const. art. IV, 14. The findings of fact by the trial judge are conclusive on appeal if there be evidence to support them. Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351.
Defendant has not taken exception to any finding of fact made by the trial judge. In the absence of proper exceptions to the findings of fact by the trial judge, the appeal presents for review only the question whether the findings of fact support the conclusions of law and the entry of the judgment. 1 Strong, N.C. Index 2d Appeal and Error 26 (1967). In the absence of proper exceptions to the findings of fact, exceptions to the admission of evidence, as well as exceptions to rulings of the judge in denying defendant's motions to dismiss, are ineffectual. Burnsville v. Boone, supra; Salem v. Flowers, 26 N.C. App. 504, 216 S.E.2d 392.
The fundamental findings of negligence on the part of defendant and damages to plaintiff's crop, to which defendant took no exception, are as follows:
"7. That the fence on the defendant's land was in a poor state of repair and could not stop cattle from crossing the fence and roaming at large.
"8. That the plaintiff told the defendant on numerous occasions that the fence was in poor condition and incapable of containing cattle.
"9. That the defendant did not repair or improve the condition of the fence.
"10. That sometime during the month of August, 1973, the defendant's cattle crossed through the fence on the defendant's land and roamed onto the plaintiff's leasehold.
"11. That while the defendant's cattle were roaming on the plaintiff's leasehold, the said cattle destroyed and rendered unfit for harvest two acres of soybeans."
* * *
"16. That the monetary loss to the plaintiff as a result of the damage to the two acres of soybeans was $420.00."
In our opinion the foregoing unchallenged findings of fact support the trial court's conclusions that defendant was negligent and that plaintiff had been damaged in the sum of $420.00 as a result of defendant's negligence, and support the entry of judgment appealed from.
Affirmed.
Judge MORRIS concurs.