Edwards v. City of Raleigh

81 S.E.2d 273 (1954) 240 N.C. 137

EDWARDS et al.
v.
CITY OF RALEIGH.

No. 451.

Supreme Court of North Carolina.

April 14, 1954.

R. B. Templeton, Sr., and W. H. Yarborough, Raleigh, for plaintiffs-appellees.

Paul F. Smith and William Joslin, Raleigh, for defendant-appellant.

BOBBITT, Justice.

Parties through their counsel may make stipulations of fact. Harrill Bros. v. Southern R. Co., 144 N.C. 542, 57 S.E. 382; Lumber Co. v. Elizabeth City Lumber Co., 137 N.C. 431, 432, 49 S.E. 946. Where a case is submitted upon an agreed statement of facts, the agreement as to the facts must stand unless set aside for fraud or mutual mistake. Lumber Co. v. Elizabeth City Lumber Co., supra; Hood ex rel. Page Trust Co. v. Johnson, 208 N.C. 77, 178 S.E. 855; Hood ex rel. Page Trust Co. v. Johnson, 209 N.C. 112, 182 S.E. 709.

Such submission is in effect a request by the litigants that judgment be entered in accordance with the law as applied to the agreed facts. U Drive It Auto Co. v. Atlantic Fire Ins. Co., 239 N.C. 416, 80 S.E.2d 35. "The court cannot, against the objection of one party to an agreed case, receive additional evidence touching the controversy, unless so authorized by stipulation in the agreement for submission." 2 Am.Jur. pp. 383-384, Agreed Case, sec. 22. As stated by Winborne, J., in Consolidated Realty Corp. v. Koon, 216 N.C. 295, 4 S.E.2d 850, 851: "The case is to be heard only upon the facts presented and the court cannot go outside of the statement of facts. McIntosh P. & P. 556. McKethan v. Ray, supra [71 N.C. 165]; Overman v. Sims, 96 N.C. 451, 2 S.E. 372; Waters v. Boyd, supra [179 N.C. 180, 102 S.E. 196]; Wagoner v. Saintsing, 184 N.C. 362, 114 S.E. 313; Consolidated Realty Corp. v. Koon, 215 N.C. 459, 2 S.E.2d 360."

There being no allegation or suggestion of fraud or of mutual mistake in the submission of the agreed statement of facts, the court below should have considered the plaintiffs' appeal from the full Commission in respect of errors of law, if any, in relation to the agreed facts. The cause is remanded to the court below to the end that such hearing be conducted and adjudication made.

The defendant's appeal is from an order remanding the cause to the Industrial Commission, not from a final judgment. As stated by Ervin, J.: "an appeal does not lie to the supreme court from an interlocutory order of the superior court, unless such interlocutory order deprives the appellant of a substantial right which he might lose if the order is not reviewed before final judgment. G.S. § 1-277; Veazey v. City of Durham, 231 N.C. 357, 57 S.E.2d 377; Emry v. Parker, 111 N.C. 261, 16 S.E. 236." City of Raleigh v. Edwards, 234 N.C. 528, 67 S.E.2d 669, 671. However, since the plaintiffs cannot go outside of the agreed facts in the presentation of their cause, a further hearing by the Industrial Commission would be inconvenient, expensive and futile; and it would seem that this Court, under the facts of this case, in the exercise of its power "to issue any remedial writs necessary to give it a general supervision and control over the proceedings of the inferior courts", N.C. Const. Art. IV, sec. 8, should not require this wholly unnecessary and circuitous course of procedure.

Error and remanded.