Anderson v. Cashion

144 S.E.2d 583, 265 N.C. 555, 1965 N.C. LEXIS 1043

Opinion

PER Cueiam.

The issue which the court submitted to itself and answered, considered in the light of the pleadings, is of very doubtful meaning at best. Its ambiguity is such that the answer thereto will permit, in one view of the matter, the construction that the verdict is favorable to defendants and is contrary to the judgment entered. Furthermore, the issue, in any view of the matter, does not dispose of all material controversies arising on the pleadings, and therefore it will not support a final judgment. Rubber Co. v. Distributors, 253 N.C. 459, 117 S.E. 2d 479. The questions in controversy on the present pleadings are whether the restrictions are unenforceable in equity because of changed conditions, as alleged by defendants, and, if not, whether the uses proposed by defendants violate the restrictions, as alleged by plaintiffs.

Parenthetically, we take note that unless an action is a small claim, G.S. 1-539.5, it is irregular for the court to render a verdict on issues submitted to itself. G.S. 1-185; Wynne v. Allen, 245 N.C. 421, 96 S.E. 2d 422.

The verdict and judgment are vacated and there will be a

New trial.