Grantham v. . Nunn

124 S.E. 309, 188 N.C. 239, 1924 N.C. LEXIS 47

Opinion

Hoke, C. J.,

after stating tbe case: "While tbe findings of fact made by Judge Daniels on 24 January, 1924, and affirmed by this Court are definite in form and presently sustain tbe position of T. ~W. Holton, tbe appellant, a proper perusal of tbe record will disclose that these findings were made on tbe bearing of a preliminary restraining order and for tbe purposes only of tbe questions as therein presented, and in such case it was by no means tbe purpose nor was it within tbe power of tbe learned judge to conclude tbe parties on issuable matters which might arise on tbe pleadings and be presented by tbe parties at tbe final bear ing. Owen v. Board of Education, 184 N. C., 267; Sutton v. Sutton, 183 N. C., 128; Moore v. Monument Co., 166 N. C., 211.

In Sutton v. Sutton, supra, wherein tbe lower court dissolved tbe restraining order and entered judgment for defendant, tbe governing principle is stated as follows: “Upon tbe bearing by tbe judge upon tbe question of continuing a restraining order to tbe bearing, tbe judge, upon proper findings (and it may be added on tbe evidence presented and without findings), may dissolve tbe temporary order, but in doing so it is error for him also to determine an issue of fact material to tbe rights of tbe parties and which should be reserved for tbe jury to pass upon at the trial.”

And in Owen v. Board of Education, supra, the Court said: “The facts in evidence are fully sufficient to support and justify the conclusions of the trial judge, and bis judgment dissolving the restraining order must be upheld, but we think his Honor went beyond the powers conferred upon him when be undertook to make final determination of the rights of the parties and adjudged that defendants go without day.”

In tbe case before us as now presented tbe issuable matter determinative of tbe rights of these litigants is whether tbe purchase money notes now held and claimed by appellant Holton were, paid outright by C. K. Taylor, tbe second mortgagor, or were paid with money advanced by appellant to said Taylor under circumstances which conferred upon appellant tbe right of subrogation as indicated in our former opinion. On this issue, and in ordinary civil actions, tbe parties are entitled to a jury trial unless waived by them, and on careful examination we find no such waiver 'on tbe record as tbe law permits and requires. Wilson v. Bynum, 92 N. C., 717; C. S., 556.

It is contended for appellant that tbe first bearing before Judge Daniels was in reality an application for a mandamus in which by our statutes a party litigant is not entitled to a jury trial unless tbe same is demanded in apt time. Tyrrell v. Holloway, 182 N. C., 64; C. S., 868. It will be noted, however, that this statutory provision applies to actions of mandamus proper, a writ allowable only for tbe enforcement of clearly defined legal rights and more usually in matters of public or guasi-public concern. So far as examined, it is never available for tbe enforcement of equitable rights which concern only tbe pecuniary interest or proprietary rights of individual litigants. Person v. Doughton, 186 N. C., 724; Service Co. v. Power Co., 179 N. C., 330; Wall v. Strickland, 174 N. C., 298; Telephone Co. v. Telephone Co., 159 N. C., 9; Edgerton v. Kirby, 156 N. C., 347; Turnpike Co. v. McCalla, 119 Ind., 382; High on Injunctions, sec. 2; Beach on Injunctions, sec. 9.

It now appears tbat in tbis action, brought originally to redeem the land from the encumbrance of a purchase-money mortgage, plaintiff has paid off all the notes secured other than those held by appellant, and the only question now remaining is whether, as stated, appellant is entitled to enforce the lien for the notes claimed and held by him under the principles of subrogation, both being clearly for the enforcement of equitable rights and for which mandamus does not lie.

There is no error, and the judgment below is

Affirmed.