W. R. S. Burbank v. . S. H. Wiley

66 N.C. 58 | N.C. | 1872

^* This case was decided at January Term 1871, but by some overnight, was not reported. The Attorney General considers it as involving a question of practice of sufficient importance to require a report even at this time. At Fall Term 1870, His Honor Judge Jones, proceeded to render a decree in the old form, which, however, contained no declaration or finding of the facts, nor did they otherwise appear from the papers, to have been found.

From this decree the defendant appealed. A decree ought to declare the facts, upon which, the law is adjudged. Under the C. C. P., when that is not done in new cases, we have to send the case back because we can try no issue of fact. It is otherwise in equity cases pending at the adoption of C. C. P., as this case was. But even in old cases we usually direct issues to be sent down. The decree in this case declares no facts, and the issues are such as we are unwilling to try. We have, then, either to send down issues or to remand the case that his Honor below may, in such way as may seem to him best, find the facts. To this end the judgment is reversed and the case remanded.