Sullivan v. Johnson

165 S.E.2d 507 (1969)

3 N.C. App. 581

Shirley B. SULLIVAN (Hines) v. Martha JOHNSON.

No. 688SC444.

Court of Appeals of North Carolina.

February 5, 1969.

*508 Turner & Harrison, by Fred W. Harrison, Kinston, for plaintiff appellant.

George B. Greene and James A. Hodges, Jr., Kinston, for defendant appellee.

FRANK M. PARKER, Judge.

The first question presented by this appeal is whether the lower court possessed the authority to make findings of fact, where the record does not show the hearing of evidence, the waiver of a trial by jury, or an agreement as to the facts. The case of Horton v. Horton, 211 N.C. 390, 190 S.E. 216, seems particularly in point. In that case, the court stated:

"The record does not disclose what admissions, if any, were made at the hearing in the court below, and there being no waiver of jury trial or agreement as to facts nor evidence offered, the court was without power to decide a controverted issue of fact raised by the pleadings. Doubtless the effort to end an unseemly controversy between members of the same family led the learned judge into error."

See also, In re Wallace, 267 N.C. 204, 147 S.E.2d 922; Sparks v. Sparks, 232 N.C. 492, 61 S.E.2d 356; Const. Art. I, § 19; 5 Strong, N.C. Index 2d, Jury, § 1, p. 117; 7 Strong, N.C. Index 2d, Trial, § 56, p. 375; 1 McIntosh, N.C. Practice 2d, § 1371.

"An issue of fact is raised for the determination of the jury whenever a material fact, which is one constituting a part of plaintiff's cause of action or defendant's defense, is alleged by one party and denied by the other." 6 Strong, N.C. Index 2d, Pleadings, § 37, p. 373. In Re Wallace, supra; G.S. § 1-198. Since new matter in the answer, not relating to a counterclaim, is deemed denied without a reply, 1 McIntosh, N.C. Practice 2d, § 1264; Gamble v. Stutts, 262 N.C. 276, 136 S.E.2d 688; G.S. § 1-159, it is clear that there were issues of fact in the case at hand which were required to be submitted to the jury, in the absence of waiver.

Plaintiff's assignment of error to the failure of the court to rule upon her motion to strike is also well taken. It is well settled that a motion to strike, made in apt time, is made as a matter of right. G.S. § 1-153; Durham Bank & Trust Co. v. Pollard, 256 N.C. 77, 123 S.E.2d 104; Brown v. Hall, 226 N.C. 732, 40 S.E.2d 412; Parrish v. Atlantic Coast Line R. R., 221 N.C. 292, 20 S.E.2d 299. The plaintiff in this case, having filed her motion in apt time, was entitled to be heard thereon. The right to make a motion to strike would be an empty one unless it included the right to have the motion ruled upon.

Since the trial court failed to rule upon plaintiff's motion to strike and since in any event the court had no authority to make findings of fact on controverted issues, a jury trial not having been waived, the judgment appealed from is set aside and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

BROCK and BRITT, JJ., concur.