Bakery v. . Insurance Co. , 201 N.C. 816 ( 1931 )

This is an action to recover on a policy of life insurance issued by the defendant, without a medical examination of the insured. C. S., 6460. By the terms of the policy, defendant promised to pay to the plaintiff, upon the death of the insured, the sum of $2,500. The policy was issued on 15 May, 1930; the insured died on 28 July, 1930.

The defendant denied liability on the policy and refused to pay the amount thereof, on the ground that the issuance of the policy was procured by false and fraudulent representations made by the insured in his written application therefor.

The action was begun and tried in the General County Court of Buncombe County. The issues submitted to the jury were answered as follows:

"1. Was the policy sued on in this action procured by the fraud of the deceased? Answer: No.

2. What amount, if any, is the plaintiff entitled to recover of the defendant on the policy sued on in this action? Answer: $2,500, with interest from 28 July, 1930."

From judgment on the verdict, the defendant appealed to the Superior Court of Buncombe County. N.C. Code, 1931, sec. 1608(cc). On this appeal defendant assigned as errors in the trial in the general county court the refusal of the court (1) to submit issues tendered by defendant; and (2) to allow its motion for judgment as of nonsuit at the close of all the evidence. On the hearing of this appeal in the Superior Court, defendant's assignments of error were not sustained.

From judgment of the Superior Court affirming the judgment of the general county court, defendant appealed to the Supreme Court. On this appeal, defendant assigned as error the judgment of the Superior Court. This was the only assignment of error. The only assignment of error on defendant's appeal to this Court is based upon its exception to the judgment of the Superior Court. The defendant does not assign as errors the decisions of the judge of the Superior Court of the questions of law presented to said court by its assignments of error on its appeal from the judgment of the general county court. These assignments of error were not sustained by the Superior Court. They are discussed in the brief filed in this Court by counsel for defendant. They cannot be considered, however, on this appeal. Smith v.Texas Co., 200 N.C. 39, 156 S.E. 160; Davis v. Wallace, 190 N.C. 543,130 S.E. 176; Smith v. Winston-Salem, 189 N.C. 178, 126 S.E. 514. This Court will consider and pass upon only exceptions duly noted by the appellant to decisions of the court below on matters of law or legal inference. Its jurisdiction as an appellate court is conferred by the Constitution, Art. IV, sec. 8. It has no jurisdiction except to review, upon appeal, decisions of the court below on matters of law or legal inference. It can exercise this jurisdiction only when the decisions of the court below are properly presented by assignments of error based upon exceptions duly taken. Rawls v. Lupton, 193 N.C. 428, 137 S.E. 175. There is no error in the judgment of the Superior Court. It is

Affirmed.