Opinion
(Filed 17 September, 1913.)
Appeal and Error — Case Agreed — Omissions — Procedure — Case Remanded.
A necessary finding in an action to recover money from an express company, alleged to have been lost from a valise which had been intrusted to the defendant for shipment, is that the money was taken while the valise was in the defendant's care or control, and such finding being omitted from an agreed case submitted to the Superior Court, it is remanded so that the omission may be supplied.
APPEAL from Lyon, J., at June Term, 1913, of EDGECOMBE. (364)
G. M. T. Fountain Son for plaintiff.
F. S. Spruill for defendant.
Action, heard on appeal from a justice's court. The action was to recover the sum of $13 and interest, being an amount of money lost from a valise which had been intrusted with defendant company for shipment from Fayetteville to Tarboro, N.C. and for a penalty in failing to adjust the claim within the time required by law, as provided by ch. 139, Laws 1911.
In the Superior Court the case was submitted on case agreed upon, and judgment having been entered in plaintiff's favor for the claim and the statutory penalty, defendant excepted and appealed.
We are unable to determine the questions at issue in this cause for the reason that the facts agreed upon contain no finding that the money was taken while the valise was in the care or control of defendant company. In its ordinary acceptation, a judgment is the conclusion of the law upon facts admitted or in some was established, and, without this essential fact, the Court is not in a position to make final decision on the rights of the parties. Bryant v. Insurance Co., 147 N.C. 181. The cause will be remanded, that the determinative facts may be established. The costs will be equally divided between the parties.
Remanded.