Opinion
(June Term, 1877.)
Practice — Evidence — New Trial.
Where the court below is requested to charge the jury that there is no evidence to support a certain allegation, and "the case" does not set out all the evidence so as to enable this Court to decide the question, a new trial will be ordered.
APPEAL at January Term, 1877, of WAYNE, from Seymour, J.
W. N. H. Smith for plaintiffs.
H. F. Grainger, S.W. Isler, and F. A. Woodard for defendants
This action was instituted to establish a parol trust and to recover the rents and profits of certain lands mentioned in the pleadings, but as a new trial has been ordered upon the ground that the case does not set out all the evidence touching the controversy, a statement of the facts (29) is unnecessary.
Upon a demurrer to evidence, "the case," as a matter of course, sets out all of the evidence, because otherwise the court cannot decide the question.
So when counsel move the court to instruct the jury that there is no evidence to support a certain allegation, which is refused and appeal is taken, we had supposed it to be a matter of course that the case would set out all of the evidence which the judge thought tended to prove the allegation, so as to put it in the power of this Court to decide the question.
Here the statement of the case shows that the counsel of the defendants moved the court to instruct the jury that there was no evidence to support the allegation of a parol trust, or of any consideration to support it, (and he might have added) or of any inducement to make it.
The statement of the case, which is settled by the judge, curtly cuts off the motion by setting out, "There was evidence of the parol trust," etc.; so the counsel for defendants say, "There is no evidence"; and the judge says, "There is evidence." How is this Court to decide? Reductio ad absurdum.
Upon consultation, it was a question, Shall we require the judge, by certiorari or other writ, to amend "the case settled by him," or shall we order a new trial? We decided on the latter course, and were influenced in some measure by the fact that the judge and the jury, in a mere matter of account of rents and profits, differ from $6,800 to $3,000, and for the further reason that because of the vagueness of the (30) complaint in respect to the alleged parol trust, we are not able to see what was the consideration or the inducement for Coley and Sauls to pay $4,200, and let Mrs. Barnes and her children live on the land until after supporting the whole family, the products of the land should be equal to $4,200, with interest, which amount these charitable gentlemen have paid out in cash, plus $6,800 as the jury find, $3,000 as the judge says.
The allegation is disputable, and as the case cannot be disposed of without a statement of the evidence, a new trial is ordered.
PER CURIAM. Venire de novo.