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O. LEE ICENHOUR, JAY STAFFORD, BURETTE STAFFORD, ROM C. DEAL, RALPH STAFFORD, and WAITSELL ICENHOUR, on Behalf of Themselves and All Other Persons Who Have or Claim an Interest or Right by Way of Easement or Otherwise to Property or Rights Referred to in the Complaint in This Action v. MARSHALL BOWMAN, PERRY WHITE, JAYSON FOX, WILLARD PRICE, ELBERT BOWMAN, SWAN BLANKENSHIP, DEXTER DEAL, MARVELEE DAGENHART, MARLOW ICENHOUR, GARLAND HEFNER, TERRILL BOSTIAN, and EUGENE CLINE, Trustees of FRIENDSHIP LUTHERAN CHURCH, and Their Successors in Office
WiNboeNe, J.
In North Carolina the Constitution guarantees, the statutes of the General Assembly preserve, and the decisions of the courts enforce, the right to trial by jury. Constitution of N. C., Art. I, Section 19, Art. IV, Section 13, G.S. 1-172, G.S. 1-184. Andrews v. Pritchett, 66 N.C. 387; Chasteen v. Martin, 81 N.C. 51; Driller Co. v. Worth, 117 N.C. 515, 23 S.E. 427; Hershey Corp. v. R. R., 207 N.C. 122, 176 S.E. 265; McCullers v. Jones, 214 N.C. 464, 199 S.E. 603.
The Constitution, Article I, Section 19, proclaims that “in all controversies at law respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and ought to remain sacred and inviolable.” The Constitution, Article IV, Section 13, also declares that “in all issues of fact, joined in any court, the parties may waive the right to have the same determined by a jury . . .” And in implementation of these Constitutional provisions, the General Assembly
[438] of North Carolina has enacted these statutes: G.S. 1-172, which provides that “an issue of fact must he tried by a jury, unless a trial by jury is waived or a reference ordered,” and G.S. 1-184, which provides that “trial by jury may be waived by the several parties to an issue of fact . . .”
Thus where the parties to a civil action do not waive trial by jury nor consent that the judge find the facts, it is error for the judge to enter judgment without the aid of the jury on the controverted issues of fact raised by the pleadings. McCullers v. Jones, supra.
Hence the assignment of error predicated on exception of defendant to the action of the trial judge in dispensing with a jury trial, now presented, in absence of waiver and consent of parties, is well founded. The averments in the answer of defendants, particularly in the further answer and defense, raise issues of fact as to which defendants may not be deprived of the right to a jury trial, — without their consent. Here, as in McCullers v. Jones, supra, there is no waiver of jury trial, and no consent that the judge find the facts. Hence there is error in the judgment from which appeal is taken. Therefore the judgment is stricken out, and the cause is remanded for the proper determination of the issues arising upon the pleadings.
Error and remanded.