Remsen v. Edwards , 236 N.C. 427 ( 1952 )

72 S.E.2d 879 (1952) 236 N.C. 427

REMSEN et al.
v.
EDWARDS et al.

No. 163.

Supreme Court of North Carolina.

November 5, 1952.

Martin F. Papish, Philadelphia, Pa., Gay & Midyette, Jackson, for plaintiffs appellees.

Eric Norfleet, Jackson, Allsbrook & Benton, Roanoke Rapids, W. H. S. Burgwyn, Jr., Woodland, for defendants appellants.

WINBORNE, Justice.

The subject of "judgment on the pleadings" has been fully discussed in opinion by Ervin, J., in the recent case of Erickson v. Starling, 235 N.C. 643, 71 S.E.2d 384, 394. The ruling there is applicable, and determinative here.

It is there held that "On a motion for judgment on the pleadings, the presiding judge should consider the pleadings, and nothing else. * * * He should not hear extrinsic evidence, or make findings of fact. * * * If he concludes on his consideration of the pleadings that a material issue of fact has been joined between the parties, he should deny the motion in its entirety, and have the issue of fact tried and determined in the way appointed by law before undertaking to adjudicate the rights of the parties."

Issues of fact must be tried by a jury, unless trial by jury is waived. G.S. § 1-172. See Erickson v. Starling, supra. And in the present case a jury trial was not waived, nor did the parties consent for the trial judge to find the facts.

Hence, in the light of these rules of practice applied to the pleadings and case in hand, we hold that error appears upon the face of the record and judgment. And a detailed discussion of the pleadings will serve no useful purpose.

Error.