Davis v. Wall.

55 S.E. 350 | N.C. | 1906

The plaintiff complains for trespass in cutting and removing timber trees from plaintiff's land "to his great damage." Under this allegation plaintiff was entitled to recover the value of the timber so removed, "together with adequate damages for any injury done to the land in removing it therefrom." Gaskins v. Davis, 115 N.C. 85. Though paragraph 3 of the complaint puts the value of the timber at $150, and the prayer for relief is for the same amount, the latter is not an essential part of the complaint: Wright v. Insurance Co., 138 N.C. 488; and the Court will give any relief appropriate to the complaint, proofs and findings of the jury, without reference to the prayer for relief. Moore v. Nowell, 94 N.C. 265.

In Hammond v. Schiff, 100 N.C. 161, where the complaint alleged damages from the falling of a wall, evidence of damage from water used to put out fire caused by the falling wall was held (452) competent, Smith, C. J., saying that the "rule in pleading is not so stringent as to require a special averment of every immediate cause of the injury suffered. The primary and efficient cause of all the injury, however directly produced from fire or water, was the falling wall, and this was brought about by undermining the earth near to it, and all the consequences resulting therefore are within the compass of the demand for compensating damages."

The boundary-line between the plaintiff and defendant had been established in a processioning proceeding, and the defendant admitted that he had cut and removed the trees from land lying on the plaintiff's side of said boundary-line. It is true that a processioning proceeding is for a settlement of a boundary-line, title not being involved; but if the defendant therein denies the title of the plaintiff, as well as the location of the boundary-line, upon the issue of title thus raised the case would have been transferred to the Superior Court at term time for trial, and tried as if the action had been originally brought in that Court, just as when an issue of title is raised in proceedings in partition. Smith v.Johnson, 137 N.C. 43; Stanaland v. Rabon, 140 N.C. 202. Not having raised such issue, the defendant is estopped by the judgment in that action from denying the boundary thus determined to be the true line and from now asserting title to any land beyond it. Parker v. Taylor, 133 N.C. 103.

"The broadside" exception "for errors in the charge" cannot be considered on appeal. Sigmon v. R. R., 135 N.C. 184, where it is said: "It admits of some surprise that an exception in such terms should still appear in any case sent to this Court."

The plaintiff moves to dismiss because: (1) The exceptions are not "briefly and clearly stated and numbered" as required by the statute, Rev., 591, and Rule 27 of this Court. (2) The exceptions relied on are not grouped and numbered immediately after the end of (453) the case on appeal as required by Rules 19 (2) and 21, 140 N.C. 660. (3) The index is not placed at the front of the record as required by Rule 19 (3), 140 N.C. 660.

Under Rule 20, one of the alternatives is to dismiss the appeal, and the motion is allowed, in the expectation that appellants hereafter will conform to these requirements. Sigmon v. R. R., 135 N.C. 182, and cases cited. Ordinarily, hereafter, such motions will be allowed, upon a failure to comply with the Rules of this Court, without discussing the merits of the case as we have done in this instance.

Appeal Dismissed.

Cited: Woody v. Fountain, 143 N.C. 71; Green v. Williams, 144 N.C. 63;Lee v. Baird, 146 N.C. 364; Smith v. Mfg. Co., 151 N.C. 262;Whitfield v. Lumber Co., 152 N.C. 214; Pegram v. Hester, Ib., 766; Jonesv. R. R., 153 N.C. 421, 423; Williams v. Lumber Co., 154 N.C. 310;Brown v. Hutchinson, 155 N.C. 207; Hobbs v. Cashwell, 158 N.C. 597.