Hicks v. Koutro

105 S.E.2d 196 (1958) 249 N.C. 61

Evangeline Koutro HICKS
v.
Lottie M. KOUTRO, Individually, and Lottie M. Koutro, Administratrix C.T.A. of the Will of Van P. Koutro, and Agamemnon Koutro.

No. 181.

Supreme Court of North Carolina.

October 15, 1958.

Bell, Bradley, Gebhardt, & DeLaney, Charlotte, by Ernest S. DeLaney, Jr., Charlotte, for plaintiff, appellant.

L. B. Hollowell, Hugh W. Johnston, Gastonia, for defendants, appellees.

HIGGINS, Justice.

The judgment recites the parties waived a jury trial. The Court is bound by the recital. Exception No. 1 is not sustained. There is nothing in the case to show the judgment was entered out of term. The presumption of regularity prevails. Exception No. 2 is not sustained.

The question raised by the plaintiff's Exception No. 3 presents real difficulty. The pleadings raise issues of fact as to whether the Administratrix C.T.A. has mismanaged the estate and whether a receiver should be appointed on that account. Can the court, by consent, enter a fragmentary judgment settling a part of the case and leave part of the issues to be settled at a later date or in another action? A judgment is conclusive as to all issues raised by the pleadings. When issues are presented it is the duty of the court to dispose of them. Parties, even by agreement, cannot try issues piecemeal. The courts and the public are interested in the finality of litigation. This idea is expressed in the Latin maxim interest reipublicae ut sit finis litium, that there should be an end of litigation for the repose of society. Horne v. Edwards, 215 N.C. 622, 3 S.E.2d 1. "The law requires a lawsuit to be tried as a whole and not as fractions. Moreover, it contemplates the entry of a single judgment which will completely and finally determine all the rights of the parties." Erickson v. Starling, 235 N.C. 643, 71 S.E.2d 384, 395. "A party should be required to present his whole cause of action at one time in the forum in which the litigation has been duly constituted." Jenkins v. Jenkins, 225 N.C. 681, 36 S.E.2d 233, 234; Jefferson v. Southern Land Sales Corp., 220 N.C. 76, 16 S.E.2d 462. "Appellate procedure is designed to eliminate the unnecessary delay and expense of repeated fragmentary appeals, and to present the whole case for determination in a single appeal from a final judgment." City of Raleigh v. Edwards, 234 N.C. 528, 67 S.E.2d 669, 671.

The judgment here involved shows the court passed on only one of the issues and leaves others to be determined at another time or "in a subsequent action brought by the plaintiff in the event such action becomes necessary."

The court, in the judgment, "concludes that the doctrine of election is not applicable in this case." The court makes no findings of fact upon which the question of election may be determined. It appears from the will that the testator had acquired considerable property. By admission of the parties he devised four separate parcels with improvements to his wife, Lottie M. Koutro, in fee. He devised two parcels of land to his son, Agamemnon Koutro. He devised one lot and improvements to his granddaughter, the plaintiff. All the foregoing he owned in fee. Another lot and improvements he devised to the plaintiff in fee. Still another lot with improvements he devised to the defendant, his wife, for life with remainder to the plaintiff. The two properties last described were held by the testator and his wife as tenants by the entireties. We know nothing of the value of the four tracts the testator devised to his wife. We know nothing of the value of the properties she acquired by survivorship. These unfound facts would be important on the question of election. The court should find what the defendant administratrix C.T.A. has done in carrying out the provisions of the will, and especially what she, as devisee, has done with respect to the properties devised to her in fee. The question whether Lottie M. Koutro was put to an election is controlled by the intent of the testator. This intent must be gathered from the will, but the value of the properties conveyed at the time the will was made are attendant circumstances which well may be material on the question of intent. Wachovia Bank & Trust Co. v. Wolfe, 245 N.C. 535, 96 S.E.2d 690. The court, in the judgment, does not attempt to determine the testator's intent, but holds that the doctrine of election is not applicable.

For the reasons here indicated, the judgment of the superior court is set aside and the case is remanded to the Superior Court of Gaston County for another hearing.

Reversed and remanded.

PARKER, J., not sitting.