Wittkowski v. . Watkins , 84 N.C. 456 ( 1881 )

Ruffin, J.

The position taken for the plaintiffs, in regard to the point of evidence raised cn the trial, cannot be questioned. They were so clearly entitled to recover the possession of the land in dispute, upon the strength of their legal title as mortgagees, even, if their sale to Jones and his recon-veyance to them should be held to be invalid, as to make it perfectly useless to inquire into that matter. That may become of interest to the parties at some future day, but could not possiby affect the issues involved in the present action, and therefore was correctly excluded upon the. ground of its immaterialitjn

This leaves for consideration, only, the question of practice under the rule prescribed by this court for the preparation and settling the issues in causes to he tried in the superior courts. That rule, in substance, directs that at the term at which the pleadings in an action are completed, the plaintiff's attorney shall put in writing such issues as he may deem material and submit them to the defendant's attorney, who if he approve shall sign them, and they shall be treated as the issues for trial; but if he disapprove them, then he shall prepare such as he may deem material, and the whole shall be handed to the judge “who shall settle the issues and file them with the clerk, to stand for trial at the next term” It was adopted, under the general supervisory power conferred on this court by the constitution, with a view to simplify, as much as possible, trials in the superior courts, but was never intended to be more than directory to those courts, and to parties to the actions to be triedRherein. Notwithstanding the rule, the preparation of the issues in any case may be omitted to the moment of the trial; and we all know that such has been the general, if not the universal practice; and while its observance may most likely conduce to the orderly conduct of causes generally, it is, at last, a matter that must be in a great measure left to the judgment of the attorneys, and the sound discretion of the courts. Either party can, at any proper time, have the benefit of the rule, independent of the wish of the other, by simply calling the matter to the attention of the court and asking for its enforcement; and as it may be had, so it may he waived.

In the present action, the pleadings were made up at fall term, 1877, three years before it was called for trial, and neither party had, in all that time, moved in the matter of settling the issues, or invoked the interference of the court. So that we think His Honor might fairly presume, as he did, that a compliance with the rule had been waived by mutual consent of the parties, both plaintiff and defendant.

If the defendants were surprised by any issue that was adopted, so as to be unprepared with their proofs, all they had to do was to ask for a continuance of the cause, and we cannot doubt that it would have been granted them. Indeed, from the particularity with which His Honor called on the defendants, as shown in the case, to state their objections, if any, to the issues proposed by the plaintiffs, we understand that he was using all possible care to avoid putting either party to any sort of disadvantage.

Instead, however, of asking for a continuance, or showing how they were in any wise inconvenienced by the action of the court, or of the opposing party, the defendants seemed to have looked upon the rule as strictly obligatory, and as entitling them, as a matter of law, to the next term after the issues were settled, before they could be required to try. In this we think they misapprehended the true intent of the rule and their rights under it, and therefore we hold there is no error in the rulings of His Honor.

No error. Affirmed.