Rogerson v. Greenleaf Johnson Lumber Co

• Citation: 136 N.C. 266,48 S.E. 647
• Parties: ROGERSON et al. v. GREENLEAF JOHNSON LUMBER CO.
• Decision Date: 18 October 1904
• Court: United States State Supreme Court of North Carolina

48 S.E. 647

136 N.C. 266

ROGERSON et al.

v.GREENLEAF JOHNSON LUMBER CO.

Supreme Court of North Carolina.

Oct. 18, 1904.

APPEAL—PARTIAL DETERMINATION OF CAUSE— INTERLOCUTORY DECISION.

1. Where an action to recover damages for cutting timber on land depended on the construction of a will of the previous owner, and the court, after submission on the pleadings and agreed case, decided the construction issue in favor of plaintiffs, and adjudged that they recover such damages as they had sustained by reason of defendant's acts, and retained the cause for the assessment of damages by a jury or by reference, an appeal by defendant from such decision before damages had been assessed and final judgment entered was premature.

Appeal from Superior Court, Martin County; Moore, Judge.

Action by J. Rogerson and others against the Greenleaf Johnson Lumber Company. From a decision in favor of plaintiffs, defendant appeals. Dismissed.

This action was brought to recover damages for cutting timber on land claimed by the plaintiffs under the will of Joseph Corey. He devised land to his daughter, Sarah F. Rogerson, for her life, and added that if she died, leaving no heirs of her body, the land should revert to his family. The plaintiffs, who are the children of Sarah, contend that at their mother's death they took a remainder in fee by implication of law. The defendant purchased the timber on the land from Sarah. The plaintiffs further contend that she, having only a life estate, could not convey a good title to the timber as against them. The defendant contends that the limitation over to the family upon the contingency mentioned is in the residuary clause of the will, and does not apply to the land in controversy, known as the "Pocosin Land, " which is given to Sarah in a separate item, and, if it does apply, that Sarah took an estate in fee tail under the rule in Shelley's Case, which was converted into a fee-simple absolute by the act of 1784 (Code, § 1325). The matter was submitted to the court for its decision upon the facts admitted in thepleadings and a case agreed. The court, "being of opinion with the plaintiffs, adjudged that they recover such damages as they have sustained by reason of the acts of the defendant, " and retained the cause for the assessment of damages by a jury or by reference. The defendant excepted and appealed.

Gilliam & Martin, for appellant.

Harry W. Stubbs, for appellees.

WALKER, J. (after stating the case). We cannot decide the interesting question raised in this case, as it is not properly before us. The appeal is fragmentary, not having been taken from a judicial order or determination of the court which affects a substantial right of the defendant. On the contrary, the appeal was taken from a mere opinion of the court upon one of the questions of law involved in it, and which did not put an end to the action. We are asked to decide, not the whole controversy, but only a part of the case. If we should comply with the request, and the case should be further tried upon the question of damages, and either side should allege errors in the trial of that issue and appeal, we should have the anomalous case presented of two judges trying different parts of the same controversy, which the law has always required to be tried by only one. It is true that we can award a new trial upon any one issue, when there has been error only as to that one, and remand the case for the trial of that issue, and the matter may again come before us by appeal; but the appeals will have been taken from final judgments, and the case thus presented, it will be seen, depends altogether upon a principle different from the one which must govern in this appeal. In Hines v. Hines, 84 N. C. 122, an appeal was taken from just such a ruling as we have in this case, upon a case agreed, in which the question was propounded: Can the plaintiff maintain his action, and is he entitled to his account of rents and profits? The appeal was held to be premature, and the language of Ashe, J., who wrote the opinion of the court, is so opposite that we reproduce it: "The case by the appeal in the manner It is brought before this court is fragmentary. The law involved is by pro forma judgment sent to this court, while the facts and merits of the case are retained in the court below to await the opinion of this court upon the question of law. Such a proceeding is an innovation upon the practice of the court, and to entertain the appeal would be establishing a bad precedent, to which this court cannot give its sanction. The parties in this case should have gone on regularly to trial of the case upon all the issues raised by the pleadings, according to the regular practice of the court, and, if the court should have erred in its judgment or any of its rulings, then to have brought the whole case before this court by appeal, that its decision upon the questions of law involved and controvert ed might be finally adjudicated." The case of Moore v. Hinnant, 87 N. C. 505, Is directly applicable. "The statement, " says Smith, C. J., "should embrace all the facts material to a final and complete determination, witft nothing further to be done except to carry the judgment into effect. The...