Tucker v. Satterthwaite

• Decision Date: 06 April 1897
• Citation: 27 S.E. 45,120 N.C. 118
• Parties: TUCKER v. SATTERTHWAITE et al.
• Court: North Carolina Supreme Court

27 S.E. 45

120 N.C. 118

TUCKER

v.SATTERTHWAITE et al.

Supreme Court of North Carolina.

April 6, 1897.

Trial—Tender of Issues.

Code, § 395, providing that the material issues "arising upon the pleadings" shall be made up by the attorneys "or by the judge, " is mandatory; and where the judgment is based on issues which, though submitted by consent, wholly fail to present the real contentions of the parties, a new trial will be ordered.

Appeal from superior court, Pitt county; Boykin, Judge.

Trespass to try title by Florence Tucker, executrix, against J. H. Satterthwaite and others. From a judgment for plaintiff, defendants appeal. Reversed.

Jarvis & Blow, Blount & Fleming, and A. C. Avery, for appellants.

W. B. Rodman, Jas. E. Moore, and Jones & Boykin, for appellee.

DOUGLAS, J, This is an action of trespass, involving the title to the land in controversy, which depends upon the location of two grants. The real point in dispute seems to be whether the line constituting the northern boundary of the Smith grant and the southern boundary of the Brinkley grant runs from "F, " an admitted corner, to "G, " or to "H, " as stated in the case on appeal. The merits of this case were ably and elaborately argued before this court, and we regret our inability to determine the matter, but we cannot undertake to review a judgment based upon issues which utterly fail to present the contentions of the parties. The following are the only issues: Where is Bee Gum island, — at "H" or "L"? Have the defendants and those under whom they claim been in adverse possession of the land in dispute for a period of 20 years at any time prior to the beginning of this action? What damage, if any, is the plaintiff entitled to recover?

[The following is a copy of the plat introduced in evidence:]

The first issue is the only one looking to the location of the laud, and it fails to establish a single matter of issue raised by the pleadings. Bee Gum island itself, which is said to contain two or three acres, is not called for by either grant. The Brinkley grant begins at "a pine standing in the branch below Bee Gum island, " running thence north, and, when it comes around to the land now in dispute, calls for "Smith's line." Smith's grant does not mention Bee Gum island in any way whatever. The perplexity of the situation is by no means lessened by the older grant calling for the line and corners of the junior grant. It is true the issues were submitted by counsel, but, if there was any agreement between the parties that the location of Bee Gum island should determine any point in controversy, it does not appear in the record. The submission of issues by consent does not amount to a consent judgment, especially where the judgment which is excepted to is entirely unsupported by the issues. 1 Freem. Judgm. § 2; 1 Black, Judgm. § 106. The location of the line between Brinkley and Smith is still unsettled, at least as far as appears to us. That should have been the issue. "Issues arise upon the pleadings when a material fact or conclusion of law is maintained by the one party, and controverted by the other." Code, § 391; Heilig v. Stokes, 63 N. C. 612; State v. McKenzie, 65 N. C. 102; Armfield v. Brown, 70 tit. C. 27; Wright v. Cain, 93 N. C. 296; Patton v. Railroad Co., 96 N. C. 455, 1 S. E. 863; Fortiscue v. Crawford (N. C.) 10 S. E. 910. "The issues arising upon the pleadings, material to be tried, shall be made up by the attornej's appearing in the action, and reduced to writing, or by the judge presiding, before or during the trial." Code, § 395. In Bowen v. Whitaker, 92 N. C. '367, this court has held that the above section is mandatory, and that, where no issues are tendered by either party, it is the duty of the judge either to compel counsel to prepare the proper issues, or to prepare them himself, and submit them to the jury. Such an adherence to the statute is absolutely essential, not only to a fair trial of the case below, but to an intelligent appreciation of its merits upon an appeal to this court. In Arnold v. Estis, 92 N. C. 162, Smith, C. J., delivering the opinion of the court, says: "This is another instance in which the matters in controversy, as they appear in the pleadings, are tried without the preparation and submission of issues eliminated therefrom to the jury, as is required by Code, § 395, and which constitutes a distinguishing element in our present mode of practice; and we repeat what has been said in a previous case determined at this term, —that ...