Runnion v. . Ramsay

Merrimon, J. (after stating the facts). This suit was begun in the late Court of Equity, and, regularly, it should have been *413 “proceeded in, and tried under the existing laws and rules applicable thereto,” just before the act was passed authorizing its transfer to the Superior Court (C. C. P., §402). If that had been done, this Court would have authority to consider the evidence, review the findings of fact by the Court below, and reverse, change or modify them. But the parties chose to agree that the Judge who heard the cause “should hear the testimony and find the facts.” And the Court, consenting to, acting upon and in pursuance of that agreement, did find them. The Court had general jurisdiction of the subject matter of the cause, as well as the special jurisdiction conferred by the statute authorizing its transfer from the Court of Equity to the Superior Court. The method of trial agreed upon was one authorized by law. It was, therefore, competent for the parties, with the assent of the Court, to agree to adopt it. The Court was not necessarily required to hear and determine the cause, as if it were in the late Court of Equity, if the parties consented to a different authorized method of trial. So tlut the trial was effective and binding upon both the plaintiffs and defendants, as much so as if the suit had been originally instituted under the present method of procedure. The appellant having consented to the method of trial adopted, are bound by it and the legitimate consequences resulting from it. Having accepted that, they are not at liberty to insist upou another. Leggett v. Leggett, 88 N. C., 108; Wessell v. Ruthjohn, 89 N. C., 377. But it was insisted on the argument, that this is an “ equity case,” begun before the present method of procedure was adopted, and it must be heard and determined as such, and therefore this Court can consider the evidence and find the facts, just as the late Court of Equity would have done. As we have already said, that would be so, but for the method of trial adopted. The case was not heard like a case in the late Court of Equity — the Court not only heard the depositions of witnesses, but witnesses were examined orally before the Court, and the evidence thus *414 produced was considered by it. The depositions taken have been sent up with the appeal, but only hasty minutes — rough notes— of what the witnesses testified to orally, taken by the.Court,, have been sent up. We cannot be put in possession of the evidence received and heard on the trial as the Court below heard it. The questions put to the witnesses examined orally — how these were answered — exactly what the witnesses said — are not sent up— only the substance — perhaps not all of that is sent up. So that we canuot see, appreciate, and weigh the evidence received as the Court below did. If depositions had been taken, and all the evidence had been sent up as was done in the late Court of Equity, it would be otherwise. We cannot review the evidence, hear the case, and determine it as was done in cases in that Court. It is settled, that unless a case conies before us in such shape as that we can do so, we cannot consider the evidence and find the facts. Ordinarily, the findings of the Judge upon issues submitted, or of the facts by the Court, as the case may be, must be conclusive. There are well defined exceptions to this rule, but this case is not one of them. These are so well understood, that we need not here point them out. Worthy v. Shields, 90 N. C., 192; Coates v. Wilkes, 92 N. C., 376. The plaintiffs’ counsel relied in part upon Falkner v. Hunt, 68 N. C., 475. That case is not in conflict with what we have here decided. It was begun in the late Court of Equity — was an equity case, prosecuted and heard as such. The agreement of the parties to submit the case to the Court to try the issues of fact and law, was in effect just what the Court was charged by the law to do, except the part of the agreement which undertook to make the decision of the Court final and cut off the appeal. The agreement did not change, or undertake to change, the method of trial. The Court held simply that such agreement could not deprive either party of his right of appeal, — the appeal lay, notwithstanding the agreement, and the case having been heard in the Superior Court purely as an equity case, the parties were entitled to have it so heard in this Court upon ap *415 peal. If, however, witnesses had been examined orally by the Court,-and a mere minute of their testimony had been taken and sent up, in that ease, the decision of this Court would necessarily have been different. The appellant’s grounds of exception were not specially assigned in the record as they should have been, but what we have said is conclusive against them in every aspect of the case. If the findings of fact by the Court below were conclusive, as we have decided they were, then the judgment of that Court appealed from, was such as they could not justly complain of. The judgment must therefore be affirmed. No error. Affirmed.