Appeal by plaintiff from Long, Judge. Judgment entered 2 November 1978 in District Court, Hertford County. Heard in the Court of Appeals 27 September 1979.
Hill, Judge. Judge Vaughn concurs in the result. Judge Erwin joins in the concurring opinion.
Rule 10 of the Rules of Appellate Procedure provides for the taking of exceptions and assignments of error in the record on appeal. Plaintiff, in his grouping, has made twelve assignments of error. Each assignment has been numbered, each exception numbered, and the plaintiff has made reference to the place in the record where his exceptions are taken. However, plaintiff has failed to place the appropriate number of each exception in the record itself.
Rule 10(b) makes it clear that not only must each exception be set out immediately following the record of judicial action to which it is addressed, as plaintiff has done, but must also be numbered consecutively in order of their appearance. Plaintiff did not number the exceptions as they appear in the record.
Rule 10(a) makes it plain that any exception not set out in accordance with the Rule cannot be made the basis of an assignment of error.
Plaintiff's exceptions 5 and 12 are preserved, however. Both refer to the judgment in the cause and a ruling on a motion to
dismiss which is in the nature of a judgment. Both issues were properly raised in plaintiff's brief. Thus, notwithstanding the absence of exceptions that are properly taken, the exceptions are preserved on appeal pursuant to Rule 10(a).
Exception No. 5 reads as follows:
The Honorable Trial Judge's ruling granting the motion of the defendant to dismiss the plaintiff's action from bed and board.
Such exception is without merit.
Rule 419b) of the Rules of Civil Procedure provides in part that:
After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that ...