Edwards v. Edwards

235 N.C. 93 | N.C. | 1952

WiNboeNe, J.

Appellant challenges, and properly so, the correctness of the charge of the trial court in respect of the second issue submitted to the jury in that the provisions of the pertinent statute, G.S. 1-341, are not observed. This statute declares that “the jury, in assessing the damages, shall estimate against the defendant the clear annual value of the premises during the time he was in possession, exclusive of the use of the improvements made thereon by himself . . .”

The charge, as given in the present case, failed to instruct the jury that in making the assessment the use of the improvements made on the-premises by defendant should be excluded. See Harrison v. Darden, 223 N.C. 364, 26 S.E. 2d 860.

It is noted, however, that the first, third and fourth issues are not. challenged on this appeal, neither are they affected by the verdict on the second and fifth issues. Hence the verdict on the first, third and fourth issues will stand, and the judgment based thereon is affirmed, but without prejudice to rights of defendant under provisions of G.S. 1-344. However, a new trial in respect to the matters to which the second and fifth issues relate is ordered.

And on new trial attention is directed to the statutes on betterments, Article 30 of Chapter One of the General Statutes. See also issues suggested in addenda to Pritchard v. Williams, 176 N.C. 108, 96 S.E. 733.

Moreover, notice is taken of the figures in the stipulation of parties, for instance “8-9-19,” presumably indicating “August 9, 1919.” This practice in judicial proceedings is not approved.

For error pointed out, let there be a

Partial new trial.