Johnson v. . Whilden , 171 N.C. 153 ( 1916 )

On the hearing of the defendant's appeal in this cause, 166 N.C. 104, an examination of the record disclosed that two (157) issues were determined by the jury, one as to plaintiff's ownership of the land and the second as to whether the defendant had any interest therein.

To the first of these the jury answered "Yes," and to the second, "No, except as to the interest of the Tuckaseigee Mining Company, under the decree aforesaid."

There was judgment on the verdict merely that plaintiff was the owner of the land under the deed of trust and that he recover costs. This Court, observing that the verdict on the second issue, as the record then stood, had been rendered without objection, and that the same appeared to find that defendant H. B. Whilden was the owner of the equitable interest of the Tuckaseigee Mining Company, considered it well to call attention to the fact that the judgment, as formerly entered, made no reference to this verdict on the second issue. For aught that appeared, it might have been rendered by consent of parties. The opinion having been certified down, the judge below, his Honor, E. B. Cline, at the next term of the court, being Spring Term, 1915, in deference to these intimations in the opinion, entered judgment, in effect, that plaintiff was the owner of the property under the terms of the deed of trust and that defendant H. B. Whilden is the owner of all the right, title, interest, and equities owned by and vested in the Tuckaseigee Mining Company, in the lands in controversy, and from this judgment plaintiff, having duly excepted, appealed.

It now appears on this the plaintiff's appeal that plaintiff duly excepted to the charge of the court on the second issue, directing the jury to so render their verdict if they believed the evidence, and also moved to set aside the verdict on the second issue, which was overruled, and plaintiff excepted.

Considering the case, then, on the appeal of plaintiff, we fail to see any fact in evidence or principle of law that would uphold a claim or right on the part of defendant to the equitable interest of the Tuckaseigee Mining Company. As heretofore stated, the action in which A. M. Frye undertook to recover for legal services rendered the Tuckaseigee Mining Company was one strictly in personam. No service of process was ever shown on the company or the trustee holding the property under a decree of the court, for the benefit of creditors first and then of the stockholders of the company, and for reasons stated in the former opinion and the petition to rehear, the attempted judgment was an absolute nullity, and no right or interest of any kind in the property was acquired by defendant under his attempted purchase at execution sale.

There is no allegation of any such interest in the pleadings, and the verdict on the second issue should, therefore, be set aside as irresponsive and irrelevant to any fact alleged or proved on the trial below, and judgment entered as it appeared on the former appeal.

Error.

Cited: Comrs. v. Scales, 171 N.C. 526 (1c); Pinnell v. Burroughs,172 N.C. 186 (2e); Graves v. Reidsville, 182 N.C. 332 (1c); Stevens v.Turlington, 186 N.C. 194 (3p); Bridger v. Mitchell, 187 N.C. 376 (1c);Clark v. Homes, 189 N.C. 708 (1c); Dunn v. Wilson, 210 N.C. 494 (2c);Downing v. White, 211 N.C. 42, 43 (1cc); Monroe v. Niven, 221 N.C. 364 (1c); Butler v. Winston, 223 N.C. 424 (1c); Powell v. Turpin, 224 N.C. 69,71 (2c); Williams v. Trammell, 230 N.C. 579 (2e).

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