Goode v. . Rogers

35 S.E. 185, 126 N.C. 62, 1900 N.C. LEXIS 184

Opinion

Faircloth, C. J.

Tbis was an action for partition, and a final decree was entered in 1876, charging certain lots with the payment of owelty in favor of a certain lot or lots. In 1899, the petitioners moved on notice for an execution to collect the amounts due them by said decree. The respondents answered and pleaded payment, and the statute of limitations, etc. On appeal to the Superior Oourt, his Honor was of opinion that the record and pleadings raised issues of fact to be tided by a jury, and so ordered. The petitioners contended that only questions of fact were raised, and that they should be decided by the Court, and appealed from the order directing a jury trial.

The answer of respondents presents important questions. We are, however, not required to consider them, for the reason that the issues presented have not been tided below'. These pleas present serious and important issues of fact. McDonald v. Dickson, 85 N. C., 250; Isler v. Murphy, 71 N. C., 436.

The appeal was clearly premature, and can not be entertained. Hailey v. Gray, 93 N. C., 195; University v. Bank, 92 N. C., 651.

Appeal dismissed.'