Page Supply Co. v. Horton , 220 N.C. 373 ( 1941 )

ScheNck, J.

If the judge intended to set aside the answers made by the jury to the third and fifth issues, answer them himself, and render judgment on the verdict as amended, he was without authority so to do. Rankin v. Oates, 183 N. C., 517, 112 S. E., 32, and cases there cited. If he intended merely to strike out the answers to the third and fifth issues and to hold as a matter of law that they were surplusage and that the plaintiff was entitled to judgment upon the remaining portion of the verdict, he failed to do this, since the judgment ordered, adjudged and decreed: “1. That the verdict upon the third and fourth issues be and the same is hereby set aside and that the verdict on all the remaining issues be undisturbed and allowed to stand.” The judgment as entered is not supported by the verdict as rendered or as the verdict is stated therein to be modified by the court, hence the judgment cannot be sustained. “There is no principle of law more firmly established than that the judgment must follow and conform to the verdict or findings.” Durham v. Davis, 171 N. C., 305, 88 S. E., 433; Sitterson v. Sitterson, 191 N. C., 319, 131 S. E., 641, and cases there cited.

The judgment cannot be sustained upon the theory of its being entered non obstante veredicto, in view of the defendants’ answer to the allegation that they executed a note for $607.39, which is: “That the allegations contained in paragraph 3 are untrue and are, therefore, denied, and defendants specifically deny that they were indebted to the plaintiff in the sum of $607.39 on April 16, 1940, and specifically deny that they executed or delivered to the plaintiff any note on or about said date. . . .” A judgment non obstante veredicto is merely a belated judgment on the pleadings. Buick Co. v. Rhodes, 215 N. C., 595, 2 S. E. (2d), 699, and cases there cited.

The result of this ease is just one of the unavoidable casualties of the circuit apt to occur to the most circumspect judge.

For the error assigned the case must be remanded for a new trial.

Error.