Matthews v. Fry

• Decision Date: 18 December 1906
• Citation: 55 S.E. 787,143 N.C. 384
• Parties: MATTHEWS v. FRY et al.
• Court: North Carolina Supreme Court

55 S.E. 787

143 N.C. 384

MATTHEWS v. FRY et al.

Supreme Court of North Carolina

December 18, 1906

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.

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.

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. Insurance Co., 118 N.C. 435, 24 S.E. 780; Walnut v. Wade, 103 U.S. 688, 26 L.Ed. 526. If there was any ground to except to such findings because without evidence to support the finding, upon any point, or for any other cause, the defendant should have done so and have brought up his side of the case, also, when the plaintiff appealed, or at least he should have entered an exception so as to preserve his rights. It is not unusual for both parties to appeal. Having acquiesced in the findings of fact without exception, it is too late to except...