Goode v. Rogers
Decision Date | 27 February 1900 |
Citation | 35 S.E. 185,126 N.C. 62 |
Parties | GOODE et al. v. ROGERS. |
Court | North 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.
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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