Goode v. Rogers

Decision Date27 February 1900
Citation35 S.E. 185,126 N.C. 62
PartiesGOODE et al. v. ROGERS.
CourtNorth Carolina Supreme Court

PREMATURE APPEAL.

Where the pleadings present issues of fact that have not been tried below, an appeal is premature.

Appeal from superior court, Northampton county; Bowman, Judge.

Action by J. B. Goode and others against J. V. Rogers for partition, in which petitioners moved to collect the amount of owelty due by the decree. From an order directing the issues of fact to be tried by a jury, petitioners appeal. Appeal dismissed.

Winborne & Lawrence, for appellants.

R. B. Peebles and C. G. Peebles, for appellee.

FAIRCLOTH, C. J. This was an action for partition, and a final decree was entered in 1870, charging certain lots with the payment of owelty in favor of a certain lot or lots. In 1899 the petitioners moved, on notice, for an execution to collect the amounts due them by said decree. The respondent answered, and pleaded payment, and the statute of limitations, etc. On appeal to the superior court, his honor was of opinion that the record and pleadings raised issues of fact to be tried by a jury, and so ordered. The petitioners contended that only questions of fact were raised, and that they should be decided by the court, and appealed from the order directing a jury trial. The answer of respondent presents important questions. We are, however, not required to consider them, for the reason that the issues presented have not been tried below. These pleas present serious and important issues of fact. McDonald v. Dickson, 85 N.

C. 250; Isler v. Murphy, 71 N. C. 436. The appeal was clearly premature, and cannot be entertained. Hailey v. Gray, 93 N. C. 195; University of North Carolina v. State Nat. Bank, 92 N. C. 651. Appeal dismissed.

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8 cases
  • Williams v. Bailey
    • United States
    • United States State Supreme Court of North Carolina
    • January 3, 1919
    ......723]them to a jury. Having so decided, the judge could not dismiss the action. In Goode v. Rogers, 126 N. C. 62, 35 S. E. 185, which is a ease exactly in point, it being an appeal from the clerk, in special proceeding, the court ......
  • Belk's Dept. Store Inc v. Guilford County, 675.
    • United States
    • United States State Supreme Court of North Carolina
    • January 8, 1943
    ......1; Farr v. Babcock & Land Lumber Co., 182 N.C. 725, 109 S.EV-833; Bradshaw v. Citizens' Nat'l Bank, 17 2 N.C. 632, 90 S.E. 789; Goode v. Rogers, 126 N.C. 62, 35 S.E. 185. While an appeal lies from a ruling on a demurrer which goes to the whole cause of action, the practice is ......
  • Belk's Dept. Store v. Guilford County
    • United States
    • United States State Supreme Court of North Carolina
    • January 8, 1943
    ......1; Farr v. Babcock & Land Lumber Co., 182. N.C. 725, 109 S.E. 833; Bradshaw v. Citizens'. Nat'l Bank, 172 N.C. 632, 90 S.E. 789; Goode v. Rogers, 126 N.C. 62, 35 S.E. 185. While an appeal lies. from a ruling on a demurrer which goes to the whole cause of. action, the practice is ......
  • North Carolina Consumers Power, Inc. v. Duke Power Co.
    • United States
    • United States State Supreme Court of North Carolina
    • July 1, 1974
    ...an action. Goldsboro v. Holmes, 183 N.C. 203, 111 S.E. 1; Farr v. Babcock Lumber & Sand Co., 182 N.C. 725, 109 S.E. 833; Goode v. Rogers, 126 N.C. 62, 35 S.E. 185. In such case there is no judgment--only the refusal of a judgment. Brandhaw v. Citizens' Nat. Bank, 172 N.C. 632, 90 S.E. 789. ......
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