Cauble v. Bell

107 S.E.2d 557, 249 N.C. 722, 1959 N.C. LEXIS 418

• Court: Supreme Court of North Carolina
• Decided: March 18, 1959
• Docket: 175
• Status: Published

Opinion

RodmaN, J.

Defendants’ first 'assignment of error is directed to the failure of the court to make findings of fact which conform to their views. They urge us to review the findings with a resultant picture presented by the use of their spectacles.

This -asserted right to review -and make -other and -additional findings is based on the fact that plaintiffs seek inj-unotive relief. This Court has the right to review findings made with respect to interlocutory orders denying or granting injunctive relief. Cahoon v. Hyde County, 207 N.C. 48, 175 S.E. 846; Wentz v. Land Co., 193 N.C. 32, 135 S.E. 480; Coates v. Wilkes, 92 N.C. 376. This is true since only questions of fact -are then considered.

The judgment here is a final determination -of -the rights of the parties. The mere fact that equitable (injunctive) relief is granted gives us n-o authority to modify findings determinative o-f issues of fact raised by the pleadings. McGuinn v. High Point, 217 N.C. 449, 8 S.E. 2d 462; Galloway v. Stone, 208 N.C. 739, 182 S.E. 333; Barringer v. Trust Co., 207 N.C. 505, 177 S.E. 795; Power Co. v. Power Co., 171 N.C. 248, 88 S.E. 349; Coates v. Wilkes, supra.

Issues of fact must be determined by a jury unless such trial is waived. G.S. 1-172; Erickson v. Starling, 235 N.C. 643, 71 S.E. 2d 384. When the right to a jury trial is waived, the facts found by -the judge have the force and effect of a verdict by -a jury. N. O. Const., Art. IV, sec. 13; Rubber Co. v. Shaw, 244 N.C. 170, 92 S.E. 2d 799; Little v. Sheets, 239 N.C. 430, 80 S.E. 2d 44; Woody v. Barnett, 239 N.C. 420, 79 S.E. 2d 789; Bryant v. Bryant, 228 N.C. 287, 45 S.E. 2d 572.

Upon appropriate ■assignments of error we may examine the evidence to ascertain if there be any to support, the verdict. We may likewise, upon appropriate assignments, ascertain if the verdict is sufficient -to support the judgment, 'but we cannot enlarge or diminish findings which constitute the verdict. Power Co. v. Power Co., supra.

The pleadings raised issues of fact. The parties elected to waive jury trial and stipulated that the court “might hear the evidence, find the facts and enter the judgment.” This ’Stipulation indicates an understanding of the necessity for a determination of the issues of fact raised by the pleadings.

Upon an examination of the evidence we 'are convinced there is plenary evidence to justify the findings which the court made. The assignment directed to the insufficiency cannot be sustained.

The court found a uniform -plan to develop the area, including the property of plaintiffs and defendants Bell, for residential purposes. Property owners within the area included in the plan have conformed to the covenants and plan. The business development is outside of this area and beyond the power of those in the restricted area to control.

Based on the findings suppoi ted as they ’are by the evidence, plaintiffs were entitled to 'injunctive relief to protect their property rights. Reed v. Elmore, 246 N.C. 221, 98 S.E. 2d 360; Muilenburg v. Blevins, 242 N.C. 271, 87 S.E. 2d 493; Higdon v. Jaffa, 231 N.C. 242, 56 S.E. 2d 661; Vernon v. Realty Co., 226 N.C. 58, 36 S.E. 2d 710; Brenizer v. Stephens, 220 N.C. 395, 17 S.E. 2d 471; McLeskey v. Heinlein, 200 N.C. 290, 156 S.E. 489.

Affirmed.