
    MRS. KATE H. HALL v. ZEBULON ROBINSON, N. CURTIS ROBINSON, W. ALONZO ROBINSON, Individually, and as Partners, ROBINSON BROTHERS CONTRACTORS, INCORPORATED, a Corporation, and A. T. TISDALE, Alias A. L. TISDALE.
    (Filed 8 October, 1947.)
    1. Appeal and Error §§ 23, 31g—
    Where the sole exception is to the judgment as it appears in the record a separate assignment of error is not necessary, and motion to dismiss for failure of appellant to make such assignment of error is without merit.
    
      3. Appeal and Error § 10b—
    Where appellant fails to serve ease on appeal within the time allowed, appellee’s motion to strike the ease on appeal from the files is made as a matter of right and must be allowed.
    3. Appeal and Error § 31b—
    Absence of case on appeal is not ground for dismissal of the appeal, but the Supreme Court will review the record proper. However, if no error appears therein the judgment of the lower court must be affirmed.
    DefeNdaNt’s appeal from Qwyn, J., at January Term, 1947, of Buncombe.
    
      Williams, Cocke & Williams for plaintiff, appellee.
    
    
      Guy Weaver for defendants, appellants.
    
   Seawell, J.

Tbe plaintiff brought this action to have tbe operation of a woodworking plant belonging to tbe defendants and adjacent to ber residence in a predominantly residential district in Asbeville abated, alleging tbat tbe noise and dust from tbe plant was sucb as to cause ber substantial physical discomfort in tbe enjoyment of ber property, and asked for damages.

Tbe verdict and judgment were adverse to defendants and 'they gave notice of appeal and were given 60 days to serve case on appeal. They took 62. In acceptance of tbe case tbe plaintiffs counsel reserved all rights as to a motion to strike or dismiss, and this is confirmed by stipulation of counsel in tbe record.

Tbe plaintiff’s appeal was brought forward here by stipulation of counsel in defendants’ record and is argued both orally and by brief.

Tbe plaintiff moved in Superior Court to strike tbe case on appeal from tbe files and to dismiss tbe appeal. Tbe judge found every fact necessary to support tbe motion fully and completely with tbe plaintiff and thereupon declined tbe motion, entering judgment accordingly. There is only one exception — to tbe judgment as it appears in tbe record.

While tbe defendant has made no sucb motion, attention has been called to tbe fact tbat tbe plaintiff made no separate assignment of error and it has been suggested tbat tbe Court might ex mero motu dismiss plaintiff’s appeal on tbat ground. This, however, would be contrary to tbe practice of tbe Court and established precedent. ■

It is held in North Carolina, Bessemer Co. v. Piedmont Hardware Co., 171 N. C., 728, 88 S. E., 867, and in Wallace v. Salisbury, 147 N. C., 58, 60 S. E., 713, tbat no separate assignment of error is necessary where there is but a single exception and this is presented by tbe record, nor where tbe case is beard below on an agreed statement of facts, nor where the exception to the judgment is the only one taken — and'the appeal itself is an exception thereto. In accord with this rule are Allen v. Griffin, 98 N. C., 120, 121, 3 S. E., 837, and Lytle v. Lytle, 94 N. C., 522, 523; McIntosh, North Carolina Practice and Procedure, Sec. 679, and cases cited.

Plaintiff’s motion to strike defendants’ case on appeal from the files is made as a matter of right and involves no discretion of the judge. The facts are undisputed; and the Court is unable to condone the error or deny the relief asked for by the plaintiff.

But the loss of the case on appeal does not require the dismissal of defendants’ appeal. They have brought the record proper here and were entitled, if they so desired, to be heard upon that; or, in proper cases the Court will undertake suo sponte to review the record proper. However, the objections of the defendants do not lie .within the compass of the record proper, but in the postea, which they do not present; and we find nothing in the record proper to defeat affirmation of the judgment.

The motion to dismiss defendants’ appeal is denied. The judgment of the court below is affirmed. Lawrence v. Lawrence, 226 N. C., 221, 222; Bell v. Nivens, 225 N. C., 35, 33 S. E. (2d), 66; Pruitt v. Wood, 199 N. C., 788, 156 S. E., 126.

Motion to dismiss denied.

Judgment affirmed.  