48 S.E. 647 | N.C. | 1904
This action was brought to recover damages for cutting (267) 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 (The Code, sec. 1325). The matter was submitted to the Court for its decision upon the facts admitted in the pleadings 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.
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, (268) 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 by two Judges trying different parts of the same controversy, which the law has always required to be tried by only one. It is true *196
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 Hinesv. Hines,
Moore v. Hinnant,
The right to submit controversies for the decision of the Court, upon facts which the parties have agreed upon, does not exist "unless the question of difference might be (270) the subject of a civil action." Milliken v. Fox,
The appeal in this case was not only premature, having been taken before the case had in its development (271) reached that stage where the action of the Court could be reviewed, but there was in fact no determination of the Court, which in a proper legal sense was a judgment from which an appeal could be taken. Clark's Code (3 Ed.), sec. 548, pp. 741, 753.
What was done was clearly contrary to the course and practice of the Court and was therefore irregular. If the judgment had been in favor of the defendant it would have been final, and the latter could have appealed, but not so where it was against the defendant, in which event an assessment of damages was required before the controversy could be completely determined and final judgment entered.
The point we have discussed was not made in this Court, but we must take notice of the defect in the record, as we are required by statute to do so, and, besides, it affects our jurisdiction of the case, and one of the first inquiries in every case should be has the Court jurisdiction of the cause and the parties?
In accordance with the rule laid down in the cases we have cited, the appeal must be dismissed and the case remanded, to the end that such other and further proceedings may be had as are agreeable to law.
Appeal dismissed.
Cited: Billings v. Observer,
(272)