Remsen v. Edwards

Supreme Court of North Carolina

Remsen v. Edwards

72 S.E.2d 879, 236 N.C. 427, 1952 N.C. LEXIS 574

CourtSupreme Court of North Carolina

DecidedNovember 5, 1952

Docket163

StatusPublished

Cited by3 cases

This text of 72 S.E.2d 879 (Remsen v. Edwards) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Remsen v. Edwards, 72 S.E.2d 879, 236 N.C. 427, 1952 N.C. LEXIS 574 (N.C. 1952).

Pincite

Opinion

WiNBORNE, J.

The subject of “judgment on the pleadings” has been fully discussed in opinion by Ervin, J., in the recent case of Erickson v. Starling, 235 N.C. 643, 71 S.E. 2d 384. The ruling there is applicable, and determinative here.

It is there held that “On a motion for judgment on the pleadings, the presiding judge should consider the pleadings, and nothing else . . . He should not hear extrinsic evidence, or make findings of fact. If he concludes on his consideration of the pleadings that a material issue of fact has been joined between the parties, he should deny the motion in its entirety, and have the issue of fact tried and determined in the way appointed by law before undertaking to adjudicate the rights of the parties.”

Issues of fact must be tried by a jury, unless trial by jury is waived. Gr.S. 1-172. See Erickson v. Starling, supra. And in the present case a jury trial was not waived, nor did the parties consent for the trial judge to find the facts.

Hence, in the light of these rules of practice applied to the pleadings and case in hand, we hold that error appears upon the face of the record *429 and judgment. And a detailed discussion of tbe pleadings will serve no useful purpose.

Error.

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WiNBORNE, J.

The subject of “judgment on the pleadings” has been fully discussed in opinion by Ervin, J., in the recent case of Erickson v. Starling, 235 N.C. 643, 71 S.E. 2d 384. The ruling there is applicable, and determinative here.

It is there held that “On a motion for judgment on the pleadings, the presiding judge should consider the pleadings, and nothing else . . . He should not hear extrinsic evidence, or make findings of fact. If he concludes on his consideration of the pleadings that a material issue of fact has been joined between the parties, he should deny the motion in its entirety, and have the issue of fact tried and determined in the way appointed by law before undertaking to adjudicate the rights of the parties.”

Issues of fact must be tried by a jury, unless trial by jury is waived. Gr.S. 1-172. See Erickson v. Starling, supra. And in the present case a jury trial was not waived, nor did the parties consent for the trial judge to find the facts.

Hence, in the light of these rules of practice applied to the pleadings and case in hand, we hold that error appears upon the face of the record *429 and judgment. And a detailed discussion of tbe pleadings will serve no useful purpose.

Error.

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Bluebook (online)

72 S.E.2d 879, 236 N.C. 427, 1952 N.C. LEXIS 574, Counsel Stack Legal Research, https://law.counselstack.com/opinion/remsen-v-edwards-nc-1952.

Opinion

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