DocketNumber： 7013SC121
Citation Numbers： 173 S.E.2d 567, 7 N.C. App. 638, 1970 N.C. App. LEXIS 1750
Judges： Beock, Britt, Graham
Filed Date： 5/6/1970
Status： Precedential
Modified Date： 10/19/2024
Court of Appeals of North Carolina.
*571 Smith & Spivey, by Jerry L. Spivey, Wilmington, for plaintiffs.
Powell & Powell, by Frank M. Powell, and Powell, Lee & Lee, by J. B. Lee, Jr., Whiteville, for defendants.
BROCK, Judge.
Appellants' sole assignment of error is to the signing and entry of the judgment. Such an assignment of error presents the face of the record for review, and review is limited to the question of whether error of law appears on the face of the record, which includes whether the facts found, or admitted, support the conclusions of law and the judgment. But, such an assignment of error does not present for review the findings of fact or the sufficiency of the evidence to support them. 1 Strong, N.C.Index 2d, Appeal and Error, § 26, p. 152.
Appellants argue that the findings of fact do not support the trial court in applying the rules governing processioning proceedings to this case. It seems clear that the stipulations of the parties converted the action into a processioning proceeding by stipulating ownership of each of the parties, and by stipulating that the only question in controversy is the location of the boundary lines between the lands owned by the parties. Welborn v. Bate Lumber Co., 238 N.C. 238, 77 S.E.2d 612.
Appellants argue that the findings of fact do not support a judgment in accord with defendants' contention as to the location of the dividing lines because defendants offered no evidence and there are therefore no affirmative findings from evidence in support of defendants' contentions.
Defendants had no burden of proof to establish the boundary lines in accordance with their contentions. The burden of proof was upon the plaintiffs to establish the true location of the disputed boundary lines. "If the plaintiffs are unable to show by the greater weight of the evidence the location of the true dividing line at a point more favorable to them than the line as contended by the defendants, the jury should answer the issue in accord with the contentions of the defendants. (citing cases)." Coley v. Morris Telephone Co., 267 N.C. 701, 149 S.E.2d 14.
In an understandable, but somewhat unusual procedural convolution, appellants argue that their appeal should be dismissed as a fragmentary and premature appeal. They argue that their appeal is fragmentary and premature because the judgment appealed from left the matter of defendants' damages to be assessed at a subsequent session of court. (See next to last paragraph of judgment quoted above in statement of facts.)
The parties stipulated as follows:
"That when the boundary lines have been finally determined the ASC shall compute the proportionate tobacco and corn allotments based upon the cleared lands; and that as to allotments of which an offended party has been deprived, such parties shall be entitled to a damage judgment for the years of such wrongful deprivation, computed at the rate of Fifteen Cents ($0.15) per pound per year of tobacco, and Forty Dollars ($40.00) per acre per year for corn allotment; such damages as computed shall terminate the damage aspect of this law suit."
This stipulation supports that portion of the judgment which reserves the assessment of damages to a subsequent session of court. It is in accordance with the agreement of the parties and requires only a mathematical computation to determine the amount of damages. The judgment as entered determines the location of the boundary lines and concludes the ultimate legal rights of the parties, they having already agreed to a method of computing damages. In such a situation the appealability of the judgment must be resolved on the facts of this case. See McIntosh, N. C. Practice 2d, § 1782 *572 (1969 Pocket Part). In our opinion the judgment as entered was immediately appealable and the case is properly before this Court.
Affirmed.
BRITT and GRAHAM, JJ., concur.