Grove v. . Baker

Clark, C. J. The defendants contend that the appeal from the order setting aside the finding on the third issue and awarding a new trial as to that is fragmentary and premature. This would be so if the partial new trial had been granted as a matter of discretion (Billings v. Observer, 150 N. C., 542, but the plaintiffs appealed from the refusal of their motion for judgment upon the verdict. The finding upon the third issue was set aside as a matter of law and not of discretion. The right to a judgment is a substantial right,- and from its erroneous refusal an appeal lies. As the court found upon adequate evidence that the finding upon the third issue “from 4 to 3 referred to those figures upon the map made by the county surveyor under order of the court, which was referred to by the court in its charge, blue-prints of which were given to the jury under such instructions,” it was error to hold as a matter of law that the response to the third issue was too indefinite to justify judgment thereon. The verdict of-the jury, taken in connection with the evidence in the case and the findings of fact by the judge, is entirely definite and entitled the plaintiffs to judgment in accordance therewith. In Reynolds v. Express Co., 172 N. C., 491, it is said: “It is a recognized principle- in our system of procedure that a verdict may be interpreted and allowed significance by proper reference to the pleadings, the evidence, and the charge of the court.” “A verdict should be liberally and favorably construed with a view to sustaining it if possible, and in order to a proper apprehension of its significance resort may be had to the pleadings, the evidence, and the charge of the court.” Donnell v. Greensboro, 164 N. C., 337. “The meaning of a verdict may be found by reference to the charge of the court.” S. v. Murphy, 157 N. C., 616. In this case the blue-prints which the jury had before them in deliberating upon their verdict and in returning the same was the official plat. A ease almost exactly in point is Smith v. Fite, 98 N. C., 517, an action of ejectment, where the jury found that the plaintiff was the owner of the land in dispute “up to the red line upon our plat.” The defendant *748 moved for a new trial and to set aside tbe verdict for uncertainty. Tbe court rendered judgment in favor of tbe plaintiff up to tbe red line in accordance with tbe finding of tbe jury, and on appeal tbis Court affirmed tbe judgment, saying: “Tbe verdict refers to tbe plat wbicb, it is manifest was before tbe jury and tbe court, and wbicb bad, as tbe record shows, been prepared under an order of survey previously made in tbe cause, and we must assume tbat tbe reference to tbe- plat rendered tbe verdict intelligible and certain, upon wbicb tbe court could render judgment. Tbis is made plain by tbe reference to tbe verdict ■contained in tbe judgment. In tbis case tbe judge finds as a fact tbat tbe answer of tbe jury to tbe third issue “from 4 to 3” referred to tbe figures 4 to 3 as laid down ■on tbe plat of tbe official court surveyor. If the verdict was rendered in open court, the counsel for the defendants should then and there have made the objection for the alleged indefiniteness of the words “4 to 3” in the response to the third issue, and the court, of course, would at once have referred the matter to the jury. S. v. Whitson, 111 N. C., 695. Not having done so, the objection was waived. Indeed the jury could be reassembled. Luttrell v. Martin, 112 N. C., 607; Petty v. Rousseau, 94 N. C., 362. It may be, though it does not appear here, tbat tbe jury could not be reassembled, but tbe judge, if such was tbe case, must be presumed to have acted upon testimony in making bis finding above set out. There is no allegation tbat there was no evidence to sustain such finding, and we must presume it to be correct. Tbe appeal from tbe judgment is a sufficient assignment of error and no case on appeal is necessary. The judgment setting aside the third issue as a matter of law for indefiniteness is therefore set aside, and the case is remanded tbat judgment may be entered in accordance with the verdict and the facts as found by the judge. When the judgment is so entered, the defendants will be entitled to appeal upon any exceptions taken by them at the trial if they have preserved such exceptions by filing them in the record. Bazemore v. Bridgers, 105 N. C., 192. Reversed.