Sparks v. Sparks

61 S.E.2d 356 (1950)

232 N.C. 492

SPARKS v. SPARKS et al.

No. 237.

Supreme Court of North Carolina.

October 11, 1950.

*357 Hall & Zachary, Yadkinville, for plaintiff, appellee.

Fouts & Watson, Burnsville and Spruce Pine, for defendants, appellants.

ERVIN, Justice.

The Constitution of North Carolina guarantees to every litigant the "sacred and inviolable" right to demand a trial by jury of the issues of fact arising "in all controversies at law respecting property", and he cannot be deprived of this right except by his own consent. N.C.Const. Art. I, Sec. 19. The Code of Civil Procedure provides that issues of fact must be tried by a jury, unless a trial by jury is waived or a reference ordered. G.S. § 1-172.

The defendants did not waive their constitutional and statutory right to have the issues of fact joined on the pleadings in this case tried by a jury. N.C.Const. Art. IV, Sec. 13; G.S. § 1-184. This being true, the presiding judge had no authority to answer the issues, and to enter judgment in favor of the plaintiff upon his answers to the issues. In consequence, the judgment is set aside, and the cause is remanded for a new trial to the end that the determinative issues of fact raised by the pleadings may be submitted to a jury for decision. Crews v. Crews, 175 N.C. 168, 95 S.E. 149; *358 Cozad v. Johnson, 171 N.C. 637, 89 S.E. 37; Hockaday v. Lawrence, 156 N.C. 319, 72 S.E. 387; Hahn v. Brinson, 133 N.C. 7, 45 S.E. 359; Wilson v. Bynum, 92 N.C. 717, 718; Chasteen v. Martin, 81 N.C. 51; Hyatt v. Myers, 73 N.C. 232; Andrews v. Pritchett, 66 N.C. 387.

Error.