26 S.E. 812 | N.C. | 1897
The Court, having found as a fact that one-fourth of the crop, less one-fourth of the costs of fertilizers used, was a fair rental value, rightly adjudged that the plaintiff only recover said rental and no more; for the will, as construed in Hunt v. Wheeler,
J. H. Gooch moves in this court to be substituted as party plaintiff (The Code, sec. 965) upon a certificate of the clerk showing an assignment of the judgment in September, 1896. The plaintiff contends that this assignment did not affect the crop of the year 1895. This is a controversy not germane to the appeal and raises a question of fact which can be settled better in the court below than here. Besides, the counsel for Gooch admitted that Gooch bought the judgment in fact for Wheeler, *185 and the latter, if any one, should be made party to the action as the "party in interest." Code, 177. This, however, would present the singular spectacle of the same person being plaintiff and one of the defendants. The motion is denied. The costs of this court will be divided. Code, 527 (2).
Judgment modified.
Cited: Williams v. Hughes,