Phifer v. . Alexander

MekuiMON, J., (after stating the case). The issues agreed upon by the parties before the trial began, to be submitted to the jury, were the principal ones raised by the complaint and answer, and ought regularly to have been submitted. The appellant had the right to have them, or others substantially like them, submitted, if he had insisted upon his right at the proper time. Albright v. Mitchell, 70 N. C., 445; Miller v. Miller, 89 N. C., 209; Waddell v. Swann, 91 N. C., 108. But the Court, during the progress of the trial, and before the argument of counsel to the jury was closed, deemed it proper and expedient to submit numerous issues other than those agreed upon — drew them up and gave the appellant’s counsel notice of, and opportunity to discuss them, and he did comment upon them to the jury, raising no objection to them and making none, that the issues agreed upon had been set aside. If the appellant was not satisfied with what the Court did in this respect, he ought, when it declared its purpose, to have made proper objection, as he had the right to do; and as he did not, he must be held to have waived his right to object to them, especially, as, taking them altogether, they, in effect, secured the finding of the principal facts by the jury embraced by the material issues raised by the pleadings. It could not be just, nor would it comport with the dignity and seriousness of orderly procedure, to allow a party to test his fortune in the course of the action by submitting issues of fact to the jury, not in themselves illegal, to which he made no objection at the time they were. *338 submitted, and failing of success, to grant him a new trial, upon the ground, that he might have objected successfully in apt time to such issues, and failed to do so. Having agreed — certainly by i mplication — to submit numerous issues, instead of the three agreed upon, he cannot be allowed to ■change his purpose after an unsuccessful result, and have a new trial, because he might possibly have been more fortunate if the three issues, or they and others, had been submitted. It appears that the Court simply directed the attention of the jury to the bearing of the evidence upon the issues submitted, '• but he did not give any instructions upon the law” — the case settled on appeal so states — nor was there any special request by the appellant, after the three issues agreed upon were rejected, that the Court should give the special instructions at first prayed for, nor were exceptions taken at the time the issues were given to the juiy, because they were not given. But the statute (The Code, §413) expressly prescribes, that the Judge shall “declare and explain the law arising ” upon the facts as they bear upon the issues submitted, while it may be, if he fails to do so, and the party 'complaining fails at the proper time to ask that particular or proper instructions as to the law be given, or to object because such instructions were not given, he might not afterwards be heard to complain. In this case, at the ■close of the evidence, the appellant’s counsel did ask the Court to give numerous special instructions, intended no doubt at first to apply to the three issues set aside, but they were quite as pertinent to the issues submitted, and ought to have been given, if they embraced the law applicable; or if they did not, then they should have been modified and given; or the prayer should have been denied, and proper instructions as to the law, given. The instructions asked for were not withdrawn; they remained before the Court, and should have been disposed of in a proper way. As they *339 were not, there is error. •' The appellant 'is not ‘entitled to-judgment upon the verdict. The material facts of the case are not admitted on either side. A copy of the deed of mortgage attacked for fraud is not set forth in the record, but so far as appears from the pleadings and the evidence, it is not upon its face fraudulent, and the jury expressly find that it was not made “ with the actual intent of the parties ” to it, to defraud the creditors of the mortgagor. He is, however, entitled to a new trial, and to that end let this opinion be certified to the Superior Court according to- law. It is so ordered. Error. Venire de novo.