State ex rel. Dean v. Ragsdale

80 N.C. 215

• Court: Supreme Court of North Carolina
• Decided: January 15, 1879
• Status: Published

Opinion

Sjiith, C. J.

(After stating the case.) We are unable to see how with these facts testified to, the judge could instruct the jury that there was no evidence upon which they were warranted in finding the affirmative of the issue. If believed by them, a full and final settlement had been made, and obtained judicial sanction in the final judgment disposing of the pending action. Nor is any fact developed in the testimony tending to impugn the fairness and correctness of the adjustment itself. It occurred more than a year after the relator arrived at full age — in the presence of her mother — on the advice of her own counsel after full examination of all the facts, and it was consummated in good faith by the sureties. The confirmation by the court still remains in force and unimpeached. If the verdict is to be considered as responding affirmatively to the question, it puts an end to the case; and if not, the issue should be again submitted and passed on by the jury before any order of reference.

When the defence set up meets the action in limine and if sustained would be a bar to an account, it ought to be passed on and determined before a reference, because the account might be wholly unnecessary. Smith v. Barringer, 74 N. C., 665. In either aspect of the case the ruling of the court is erroneous. If the verdict is for the defendants, it ends the action and they should have judgment. If for the relator, it should be set aside because of the erroneous instruction under which it was rendered.

Error. • ' Reversed.