Matthews v. Fry

Decision Date18 December 1906
Citation143 N.C. 384,55 S.E. 787
PartiesMATTHEWS . v. FRY et al.
CourtNorth Carolina Supreme Court
1. Appeal — Reversal — Disposition of Cause.

A jury being waived, the judge found the facts and entered judgment for defendant. On appeal, the Supreme Court was of the opinion that, on the facts found, judgment should have been entered for plaintiff, and entered its order "Reversed." Held that, on remand, plaintiff was entitled to the entry of judgment in his favor without submitting to a new trial.

2. Same—Findings—Conclusiveness.

The findings of fact by a trial judge, when authorized by law or consent of parties, are as conclusive on appeal as when found by a jury, if there is any evidence to support them.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3955-3909.]

3. Tutal—Exceptions—Findings.

Where the court made findings of fact in.favor of defendant, if defendant was dissatisfied therewith, he should have excepted at the time, and, having acquiesced in the findings without exception until after reversal on plaintiff's appeal, it was then too late for defendant to except to the findings.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 40, Trial, § 9(54.]

Appeal from Superior Court, Swain County; W. R Allen, Judge.

Action by John G. Matthews against A. M. Fry and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Shepherd & Shepherd and C. W. Rowe, for appellants.

Dillard & Bell and Bryson & Black, for appellee.

CLARK, C. J. "The parties waived a jury trial and agreed in writing that the judge should find the facts and enter judgment thereon, as, upon the facts so found, he might decide the law to be." The judge found the facts and entered judgment thereon in favor of the defendant. Upon appeal (Matthews v. Fry, 141 N. C. 582, 54 S. E. 379), this court was of opinion that, upon the facts found, judgment should have been entered in favor of the plaintiff, and entered its order "Reversed." When the certificate of opinion was presented in the court below the plaintiff moved for judgment in accordance therewith. The defendant resisted this judgment and asked for trial de novo, and insisted that some of the findings of fact had been made by the judge without any evidence to support them.

The judgment was properly entered for plaintiff in accordance with the mandate of this court to reverse the judgment. Summerlin v. Cowles, 107 N. C. 462, 12 S. E. 234; Bernhardt v. Brown, 118 N. C. 711, 24 S. E. 527, 715, 36 L. R A. 402. The findings of fact by the judge, when authorized by law or consent of parties, are as conclusive as when found by a jury, if there is any evidence. Branton v. O'Briant, 93 N. C. 103; Roberts v....

To continue reading

Request your trial
44 cases
  • Headman v. Board of Com'rs of Brunswick
    • United States
    • North Carolina Supreme Court
    • 2 de abril de 1919
    ... ... upon the case. The jury may find that there was an unlawful ... combination or conspiracy to defraud the plaintiffs, or that ... the notice was given, which would render vain and useless any ... decision upon the question just stated. The case of ... Matthews v. Fry, 141 N.C. 582, 54 S.E. 379, which ... was referred to by counsel on both sides was decided under ... the Public Laws of 1897, c. 169, and it has since been ... approved in several cases. S. C., 143 N.C. 384, 55 S.E. 787; ... Eames v. Armstrong, 146 N.C. 6, 59 S.E. 165, 125 Am ... St ... ...
  • Morris v. Y. & B. Corporation
    • United States
    • North Carolina Supreme Court
    • 21 de maio de 1930
    ... ...          In ... Eley v. R. Co., 165 N.C. at page 79, 80 S.E. 1064, ... 1065, we find: "A jury trial being waived, the findings ... of fact by the judge are as conclusive as the verdict of a ... jury, when there is evidence to support them (Matthews v ... Fry, 143 N.C. 385, 55 S.E. 787)." In the Matter of ... Assessment against Property of Railway Co., 196 N.C. 756, 147 ... S.E. 301; Colvard v. Dicus, 198 N.C. 270, 151 S.E ... 191. From the findings of fact in the court below we think ... the contentions of the Guardian Life Insurance ... ...
  • Headman v. Bd. Of Com'rs Of Brunswick
    • United States
    • North Carolina Supreme Court
    • 2 de abril de 1919
  • Town of Burnsville v. Boone, 165
    • United States
    • North Carolina Supreme Court
    • 22 de março de 1950
    ... ... Constitution of N. C. Art. IV, Sec. 13. And his findings of fact are conclusive on appeal if there be evidence to support them. Chastain v. Coward, 79 N.C. 543; Branton v. O'Briant, 93 N.C. 99; Roberts v. Life Ins. Co., 118 N.C. 429, 24 S.E. 780; Matthews v. Fry, 143 N.C. 384, 55 S.E. 787; Buchanan v. Clark, 164 N.C. 56, 80 S.E. 424; Eley v. Coast Line R. R. Co., 165 N. C. 78, 80 S.E. 1064; Central Bank & Trust Co. v. Cooke, 204 N.C. 566, 169 S.E. 148; Equitable Life Assurance Society v. Lazarus, 207 N.C. 63, 175 S.E. 705; Odom v. Palmer, 209 N.C ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT