Rowland v. . Thompson

71 N.C. 467

• Court: Supreme Court of North Carolina
• Decided: June 5, 1874
• Status: Published

Opinion

Settle, J.

The record in this ease is confused and unsatisfactory, so much so as to leave us in doubt of some things nec essary for an intelligent solution of the questions intended to be presented.

The pleadings raised issues of fact, which could only be determined by a jury, unless the parties waived a trial by jury, and submitted the questions of facts, as well as of law, to be determined by his Honor.

But we cannot gather from the record, whether a trial by jury was waived or not waived,or indeed whether or not a jury was actually empannelled on the case.

The case states that “the defendants asked leave of the Court to introduce evidence to prove certain facts, and the Court declined to hear the evidence, for the reason, as the Court said, that the pleadings were sufficient for him to decide the case upon, and ordered the Clerk to enter the following verdict and decree,” &c.

If it was a trial by j ury, his Honor should not have taken the issues of fact from them. And if there was no waiver of a trial by jury, his Honor had no right to determine the questions of fact. In either point of view presented by the record, there appears to be error, when perhaps there may have been none at the trial.

But as we are bound by the record, let it be certified that there is error.

Per Curiam:. Judgment reversed.