Hines v. . Hines

84 N.C. 122

• Court: Supreme Court of North Carolina
• Decided: January 5, 1881
• Status: Published

Opinion

Ashe, J.

The case, by the appeal, in the manner it is brought before this court is fragmentary. The law involved is by a “pro forma” judgment sent to this court, while the facts and merits of the case are retained in the court below to await the opinion of this court upon the question of law. Such a proceeding is an innovation upon the practice of the court; and to entertain the appeal would be establishing a bad precedent, to which this court cannot give its sanction.

Questions of law involved in a case may be decided by this court in advance of a trial upon the merits, when they are properly raised, as by a demurrer, but we will not consider cases brought to this court by appeals from pro forma judgments submitted to by the parties, “to feel their way ” in cases of doubtful litigation. In the case of State v. Locust, 63 N. C., 574, the court reminds the judges-of the superior courts that it would not consider cases sent to this court' upon pro forma judgments.

The parties in this case should have gone on regularly to trial of the case upon all the issues raised by the pleadings, according to the regular practice of the court, and if the court should have erred in its judgment or any of its rulings, then to have brought the whole case before this court by appeal, that its decision upon the questions - of law involved and controverted might be finally adjudicated.

The appeal must be dismissed. Let this be certified to the superior court of Lenoir county, that further proceedings may be had, according to law.

Per Curiam. Appeal dismissed.