Matthews v. Fry
Decision Date | 18 December 1906 |
Citation | 143 N.C. 384,55 S.E. 787 |
Parties | MATTHEWS . v. FRY et al. |
Court | North Carolina Supreme Court |
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.
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.]
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....
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Headman v. Board of Com'rs of Brunswick
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