Ransom v. Robinson

Bobbitt, J. Presumably, “the cross motions” were made ore tenus. No motion .appears in the record. There was no jury trial. Nothing in the record shows that the parties waived a jury trial -and agreed that the court hear the evidence and find the facts. The case was not submitted on an agreed statement of facts. There were no stipulations. The case on appeal refers to the hearing .as a pre-trial hearing. “Unless otherwise provided by stipulation, only the documents constituting the record proper are before the court at pretrial conference.” Reid v. Holden, 242 N.C. 408, 412, 88 S.E. 2d 125. The record, under the caption “PLAINTIFF’S EVIDENCE,” shows certain documents identified as plaintiff’s exhibits. Exhibit A is judgment No. 27593, entered in prior action by Wade H. Robinson, plaintiff, v. Ernest R. Ashley, defendant, and attached map purporting to show the contentions of the respective parties. Exhibit B is the answer filed by Ernest R. Ashley in said prior action. Exhibit C is deed daited December 9, 1947, registered in Book 179, page 441, from D. W. Thompson to E. R. Ashley. Exhibit D is deed dated July 12, 1957, registered in Book 212, page 31, from Ernest R. Ashley and wife, Itlean Ashley, to Herbert Ransom. While the judgment indicates the complaint in said prior .action was considered by Judge Seawell, that complaint is not in the record nor does it appear that it was identified as an exhibit. [637] These documents constitute all the “evidence” 'appearing in the record. Nothing appears to indicate that either party offered any testimony. The judgment is predicated upon the court’s findings of fact. The facts found do not appear from the record proper nor do they appear from the documents treated as evidence. Under the circumstances narrated, it was error for the court to make any findings of fact; and plaintiff’s exception is deemed sufficient to raise this question. Our impression is that the record does not fully or accurately disclose what occurred when the cause was heard by Judge Seawell. Even so, the judgment as of nonsuit, predicated on findings of fact made by the court, must be held erroneous. Upon this record, we express no opinion as to the legal significance of the judgment entered in the prior action by Wade H. Robinson v. Ernest R. Ashley. The judgment is vacated and the cause is remanded for determination in accordance with approved practice. Error and remanded.