Opinion · Supreme Court of North Carolina

Davis v. . Higgins

87 N.C. 298

Type
Opinion
Court
Supreme Court of North Carolina
Jurisdiction
North Carolina
Date
1882-10-05
Topic
general

Smith, C. J. We concur in the action of the court in awarding a new trial, and the sufficiency of the reasons for so doing. Although some doubt was expressed upon the point by Rodman, J., in Johnson v. Nevill, 65 N.

Citator

UpLaw has not yet analyzed Davis v. . Higgins. The absence of a flag is not a finding that it is good law.

Cited by
6 opinions
DAVISv. HIGGINS,87 N.C. 298(1882)
JOHN DAVIS v. ALBERT HIGGINS.
Supreme Court of North Carolina
(October Term, 1882.)
Ejectment — New Trial.

Where, in ejectment, avenire de novowas awarded below because the jury were misled by the instruction "that although the plaintiff at the trial disclaimed title to a part of the land in dispute, the jury might render a general verdict, and the plaintiff would take out his writ of possession at his peril";Heldthat the new trial was properly awarded.
EJECTMENT tried at Spring Term, 1882, of RUTHERFORD Superior Court, beforeGudger, J.

The complaint asserts and the answer denies that the plaintiff is the owner in fee, and entitled to the possession of the land (299) described and withheld by the defendant; and thereupon an issue was submitted to the jury, with an inquiry of damages dependent upon the finding, in the these words:

Is plaintiff the owner and entitled to the possession of the land mentioned in the complaint?

In the argument on the trial, the plaintiff's counsel disclaimed any right to recover a part of the land, containing twenty acres. After instructions the jury retired to consider their verdict, and subsequently came into court again, and inquired of the judge if they could return a verdict for the whole track, or for a part, to which the court responded and informed them that if their verdict was for the plaintiff, it might be general or special, setting out therein what part of the land belonged to plaintiff, and if defendant was in possession of any part of plaintiff's land, he would be entitled to recover; and "would take out his writ of possession at his peril, if their verdict was for the plaintiff without further qualification." The jury then responded in the affirmative to the issue, and that no damages had been sustained.

After the rendition of the verdict, the court being of opinion that the instruction given as to the effect of a general verdict was erroneous and misleading, directed the verdict to be set aside and award avenire denovo, and from this order the plaintiff appealed.
Mr. J. B. Batchelor, for plaintiff.Messrs. P. J. Sinclair and Hoke Hoke, for defendant.
SMITH, C. J.
We concur in the action of the court in awarding a new trial, and the sufficiency of the reasons for so doing. Although some doubt was expressed upon the point by RODMAN, J., inJohnsonv. Nevill,65 N.C. 677, an early decision made after the introduction of the new system of pleading under the Code, it has (300)Page 238been since settled that a matter put in issue and material to the results is conclusively determined by the verdict and judgment, where land is sought to be recovered, as it would be if the recovery of persona property was the object. Here, both the pleadings and the issue involve the determination of the title and consequent right of possession in the plaintiff, and this distinctly and definitely decided in the verdict. It could not therefore be drawn in question between the parties again by the defendant, and becomesres adjudicataof record.

We refer to some of the many adjudications of this court —Fallsv. Gamble,66 N.C. 455;Isler v. Harrison,71 N.C. 64;Gay v. Stancell76 N.C. 369;Yates v. Yates,81 N.C. 397;Tuttle v. Harrill,85 N.C. 456.

No error. Affirmed.Cited: Johnson v. Pate,90 N.C. 336;Springs v. Schenck,99 N.C. 556;Bickett v. Nash,101 N.C. 583;Ferguson v. Wright,115 N.C. 569;Wyatt v.Mfg. Co.,116 N.C. 283;Turnage v. Joyner,145 N.C. 83,84.