Consolidated Realty Corp. v. Koon

Winborne, J. Upon tbis record tbe judgment below cannot be sustained. Tbe statute, C. S., 626, provides that: “Tbe parties to tbe question in difference which might be tbe subject of civil action may, without action, agree upon a case containing tbe facts upon which the controversy depends, and present a submission of tbe same to any court which would have jurisdiction if an action bad been brought.” It further provides that: “The judge shall bear and determine the case, and render judgment thereon as if an action were pending.” Tbe purpose of tbe statute is to dispense witb the formalities of a summons, complaint and answer, and to permit the case to be submitted to the court on statement of agreed facts. McKethan v. Ray, 71 N. C., 165. *297 Tbe statute must be strictly construed. Waters v. Boyd, 179 N. C., 180, 102 S. E., 196. And, in submitting a case under it, tbe procedure, being statutory, must be complied witb to render tbe judgment valid. McIntosh P. & P., 556. Only facts pertinent to tbe controversy and witb respect to wbicb tbe parties are in agreement bave a place in tbe case. Evidence from wbicb other facts may be found bas no place there. Tbe case is to be beard only upon tbe facts presented and tbe court cannot go outside of tbe statement of facts. McIntosh P. & P., 556. McKethan v. Ray, supra; Overman v. Sims, 96 N. C., 451, 2 S. E., 372; Waters v. Boyd, supra; Wagoner v. Saintsing, 184 N. C., 362, 114 S. E., 313; Realty Corp. v. Koon, 215 N. C., 459, 2 S. E. (2d), 360. However, as stated by Barnhill, J., in the opinion on the former appeal in this case, “if the facts are insufficient to support a judgment the court bas the discretionary power to permit amendments thereto wbicb are concurred in by the parties.” All persons having an interest in the controversy must be parties, to the end that they may be concluded by the judgment, and the controversy be finally adjudicated as in the case of a.n action instituted in the usual way. McKethan v. Ray, supra. But, being a consent proceeding, additional parties cannot be compelled to come in against their will. Waters v. Boyd, supra; Wagoner v. Saintsing, supra. In the latter case Walker, J., said: “Nor do we compel the persons we bave designated as proper or necessary parties to be brought in against their will (in invitum), but merely afford them the opportunity of coming in by consent and joining in the submission of the controversy upon the facts as they are now stated, or if the parties and interested persons are so advised and agree, upon a new state of facts, or such facts additional to those already agreed upon, as may meet witb the consent of the parties, the case may be submitted to the judge again, if found to be necessary, and the parties so agree, for bis decision, or such other and further proceedings may be bad as may be in accordance witb the law and the course and practice of the court.” In accordance witb these principles, tbe court below is without authority to find facts. Tbe judgment there rendered is set aside, and tbe case is remanded for further proceeding. Remanded.