Crump v. . Thomas

Smith, O. J., after statingthe case. The case shows that the proposition to refer came from the defendant, as well as the preliminary trial of the defence arising upon the estop-pel of record, and that thereupon, without demand of a jury from either party, the court proceeded to try the question on its legal sufficiency as a bar, and after argument from the counsel of each party, rendered a decision against the defendant. Nor does it appear that any objection was made to the assumption of the jurisdiction now the subject of complaint, before, during or after the rendition of the judgment during the term. The appeal of which notice was given, so far as the record discloses, did not spring from any supposed irregularity in the proceeding, nor the exercise of jurisdiction, but from an alleged error in the decision of the question of law involved. Under these circumstances his Honor properly declined to grant the motion to vacate and annul the former judgment. *274 The point in controversy, required' to be-disposed of upon a reference, is- called to the attention of the judge by the defendant’s counsel, and of which, without demand o-f a jury trial, he at once took judicial cognizance, was-, as to the legal sufficiency of the record of the prior action to defeat a recovery, a question of law arising out of the pleadings and to be determined by an inspection of the record.' If the acquiescence in the action of the judge does not take away the grounds of the exception now pressed, it is manifest, if an issue had been submitted to the jury, their verdict would be under an instruction from the judge- as to the legal effect of the transcript as evidence to sustain- the- defence since none (Mors-was required. Why then should a jury be empan-nelled to pass upon an issue involving solely a matter of law in which it would be the duty of the judge to give them directions determining the verdict ? And why may not the parties, as in the present ease was done, submit the sufficiency in law of the transcript to the direct decision of the judge who in an issue submitted to-the jury must pass upon the question in the form of an instruction for their guidance ? We see no just objection there can-be to this method of obtaining the opinion and ruling of the court, upon a simple legal proposition growing out of undisputed facts. It is certainly competent to the parties to pursue this course, and the judgment whether erroneous or not is liable to no imputation of irregularity when fully acquiesced in at the time by all.- We have not inquired whether, an estoppel does arise upon the face of the record,for no proof is needed in its aid,-, and simply suggest whether the determination of issues in-a cause originating,, before a justice who has no jurisdiction " where the title to real estate comes in controversy ” (as has not the appellate court in trying the cause) can-be effectual in concluding a party as to the title to the recovered land, in another suit where such jurisdiction does exist. We re *275 fer on the subject to the notes to the Duchess of Kingston’s case in 2 Smith’s Leading Cases, 424, and to Yates v. Yates, 81 N. C., 397, and the cases therein cited. Abbott’s Trial Evi., 826. There is no error. This will be certified that the cause may proceed in the court below. No error. Affirmed.