Sims v. Home Building & Loan Ass'n

178 S.E. 568, 207 N.C. 809, 1935 N.C. LEXIS 279

Opinion

SciiencK, J.

We hold it was error prejudicial to the plaintiffs for the judge of the Superior Court, upon an appeal from an interlocutory and discretionary order made after pleadings had been filed and issue joined, but before any evidence had been heard, to make findings of fact which were in effect determinative of the controversy, and to virtually adjudge that the trial court should be bound thereby.

We think that so much of the judgment as continues the restraining order and remands the ease to the general county court is correct, but that portion thereof which finds facts and directs how application of credits are to be made in the general county court is erroneous. The question presented by the appeal to the Superior Court was whether there was error committed by the general county court in continuing the restraining order to the final hearing, and the final merits of the controversy were not then before the court.

The restraining order is continued to the final hearing and the case is remanded to the Superior Court that it may be there remanded to the general county court for determination upon such issues of fact and questions of law as may there arise upon the trial of the cause.

Error and remanded.