Foushee v. Pattershall

• Decision Date: 30 June 1872
• Citation: 67 N.C. 453
• Parties: FOUSHEE and THOMPSON v. PATTERSHALL.
• Court: North Carolina Supreme Court

67 N.C. 453

FOUSHEE and THOMPSON

v.PATTERSHALL.

Supreme Court of North Carolina.

June Term, 1872.

1. A Judge of the Superior Court, in passing upon a mixed question of law and fact, should, as required by C. C. P., secs. 241, 242, state the facts found and the conclusions of law separately.

2. The jurisdiction given to the Supreme Court by the Constitution is appellate, upon any matter of law or legal, inference. No issue of fact shall be tried before it. The phrase “issues of fact,” is a technical one, and must be understood in its legal, technical sense, as including only such issues as are joined in the pleadings, and does not forbid the Court from deciding questions of fact which arise incidentally upon motions; at least, not in cases where the decision, though final for the purposes of the motion, does not conclude the rights of the parties, as, on motion, to grant or vacate injunctions.

Rodman Judge, arguendo.

The questions of fact which incidentally arise, upon exceptions to an account, differ a little in their nature from those upon a motion to grant or vacate an injunction, as the decision upon them is necessarily final for the purposes of the action. But we think this Court has never decided, that it was prohibited from reviewing the finding of a Judge of the Superior Court in such a case. We should be reluctant so to decide, as it is difficult to conceive that the law of North Carolina ever intended to confer, on a single Judge, the vast and dangerous power of deciding all questions of fact so arising, without responsibility, and without liability to review or correction, even in cases of plain and evident mistake.

[ Heilig v. Stokes, 63 N. C. 612; Clegg v. New York White Soaptone Company, 66 N. C. 391, cited and approved.]

CIVIL ACTION, tried before Tourgee, J., at Spring Term, 1872, of CHATHAM Superior Court.

The action was brought by plaintiffs, administrators of John A. Johnson, against the defendant as administrator of B. Pattershall, to recover the sum of $225 and interest from 16th February, 1857, covenanted to be paid by the intestate of the defendant. Defendant pleaded, among other things, retainer and no assets. By order of the court, there was a reference to the clerk, “to take and state an account of the defendant as administrator, &c.” A report was made, and exceptions filed. At Spring Term, 1872, his Honor rendered judgment as follows: “This cause being brought on before his Honor, A. W. Tourgee, Judge, &c., upon the report of the commissioner and exceptions, which exceptions are in the following words: That he is not charged with the amount of the note of $700, subject to a credit, &c., and the proceeds of which should have been assets, &c.; that he is not charged with a note of $433, principal, signed, &c. That said exceptions be in all things sustained.” There was no further finding of facts, and the judgment rendered is given as above. The defendant excepted to the said ruling and decision of the court, and appealed to the Supreme Court.

Manning, for the plaintiffs .

J. H. Headen, for defendant .

RODMAN, J.

The plaintiff sought to charge the defendant with two notes, which he alleged belonged to the estate of his intestate, and which defendant had failed to collect and lost through negligence. It was referred to a referee to report upon the facts relating to the notes; he reported that they did not belong to the estate of the intestate, and that the defendant had not been negligent in respect thereto. The plaintiff excepted to the report, and his Honor sustained the exceptions, thereby holding that the defendant is chargeable. But his Honor finds no...