Swann v. Bigelow , 243 N.C. 285 ( 1955 )

90 S.E.2d 396 (1955) 243 N.C. 285

Margaret SWANN
v.
W. P. BIGELOW.

No. 668.

Supreme Court of North Carolina.

December 14, 1955.

D. E. Scarborough, Yanceyville, C. O. Pearson, William A. Marsh, Jr., E. H. Gadsden, Durham, for defendant, appellant.

John W. Hardy, Yanceyville, for plaintiff, appellee.

PER CURIAM.

The presiding judge was in error in holding the answers to issues 2 and 3 as first returned by the jury were inconsistent. The court should have accepted the verdict and rendered judgment thereon, treating the answers to issue No. 3 as surplusage. To send the jury back for further consideration and to accept the verdict after the change was error. However, since the verdict as first returned was not accepted by the court there has been no proper verdict rendered in the case and for that reason the judgment entered is set aside. Butler v. Gantt, 220 N.C. 711, 18 S.E.2d 119. The cause is remanded to the Superior Court of Caswell County for a

New Trial.