Davis v. Wale

• Decision Date: 30 October 1906
• Citation: 55 S.E. 350,142 N.C. 450
• Parties: DAVIS . v. WALE.
• Court: North Carolina Supreme Court

55 S.E. 350

142 N.C. 450

DAVIS .

v.WALE.

Supreme Court of North Carolina.

Oct. 30, 1906.

1. Trespass—Pleading—Issues and Proof.

Where plaintiff in trespass alleged the cutting and removing of timber trees by defendant from plaintiff's land "to his great damage, " such allegation was sufficient to entitle plaintiff to recover the value of the timber so removed, together with adequate damages for any injury done to the land in removing it therefrom.

[Ed. Note.—For cases in point, see vol. 46, Cent. Dig. Trespass, §§ 85, 86.]

2. Judgment—Pleading—Issues and Proof.

An allegation in a complaint for trespass consisting of the cutting and removal of timber from plaintiff's land, that the value of the timber was $150, and a prayer for relief for the same amount were not essential parts of the complaint, and did not preclude the court from giving any relief appropriate to the complaint, proofs, and findings, without reference to the prayer.

[Ed. Note.—For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 34-37.]

3. Judgment — Estoppel — Processioning Proceeding.

Where defendant in a processioning proceeding did not raise an issue of title in an action for the location of a boundary line, he was estopped by the judgment from denying the boundary thus determined to be the true boundary line, and from thereafter asserting title to any land beyond it.

[Ed. Note.—For cases in point, see vol. 30, Cent. Dig. Judgment, § 1296.]

4. Appeal—General Exceptions—Effect.

An exception "for errors in the charge" was too general, and cannot be considered on appeal.

[Ed. Note.—For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 1620-1630.]

5. Appeal—Record—Preparation—Rules — Dismissal.

Revisal 1905, § 591, and Supreme Court Rule 27 (53 S. E. viii), provide that the exceptions shall be briefly and clearly stated and numbered. Rules 19 (2) and 21 (140 N. C. 660, 53 S. E. vii) declare that the exceptions relied on shall be grouped and numbered immediately after the end of the case on appeal, and Rule 19 (3) (140 N. C. 660, 53 S. E. vii) requires an index at the front of the record. Held that, where neither of such provisions were complied with, the appeal would be dismissed, as authorized by Rule 20 (53 S. E. vii).

Appeal from Superior Court, Granville County; Ferguson, Judge.

Action by J. D. Davis against W. H. Wall. From a judgment for plaintiff, defendant appeals. Dismissed.

Graham & Devin, for appellee.

B. S. Royster, for appellant.

CLARK, C. J. The plaintiff complains for trespass in cutting and removing timber trees from plaintiff's land "to his great damage." Under this allegation plaintiff was entitled to recover the value of the timber so removed "together with adequate damages for any injury done to the land in removing it therefrom." Gaskins v. Davis, 115 N. C. 85, 20 S. E. 18S, 25 L. R. A. 813, 44 Am. St. Rep.-439. Though paragraph 3 of the complaint puts the value of the timber at $150 and the prayer for relief is for the same amount, the latter is not an essential part of the complaint. Wright v. Insurance Co., 138 N. C. 488, 51 S. E. 55, and the court will give any relief appropriate to the complaint, proofs and findings of the jury, without reference to the prayer for relief. Moore v. Nowell, 94 N. C. 265. In Hammond v. Schiff, 100 N. C. 161, 6 S. E. 753, where the complaint alleged damages from the falling of a wall, evidence of damage from water used to put out fire caused by the falling wall was held competent, Smith, C. J., saying that the "rule in pleading is not so stringent as to require a special averment of every immediate cause of the injury suffered. The primary and efficient cause of all the injury, however directly produced from fire or water, was the falling wall, and this brought about by undermining the earth near to it, and all the consequences resulting therefrom, are within the compass of the demand for compensating damages."

The boundary line between the plaintiff and defendant had been established in a processioning proceeding, and the defendant admitted that he had cut and removed the trees from land lying on the plaintiff's side of said boundary line. It Is true that a processioning proceeding is for a settlement or a boundary line, title not being involved, but if the defendant therein denies the title of the plaintiff as well as the location of the boundary line, upon the issue of title thus raised, the case would have been transferred to the...