The cause had proceeded to final decree in 1879 allotting the shares and adjudging owelty against the most valuable shares in favor of the less valuable.
This was a notice to show cause why execution should not issue for the owelty adjudged — the answer set up the defense of payment, statute of limitations, and counterclaim.
His Honor adjudged these were issues of fact for the jury, and directed the cause to be placed on the civil issue docket for trial. Petitioners excepted and appealed. *Page 39 This was an action for partition, and a final decree was entered in 1876, charging certain lots with the payment of owelty in favor of a certain lot or lots. In 1899, the petitioners moved on notice for an execution to collect the amounts due them by said decree. The respondents answered and pleaded payment, and the statute of limitations, etc. On appeal to the Superior Court, his Honor was of opinion that the record and pleadings raised issues of fact to be tried by a jury, and so ordered. The petitioners contended that only questions of fact were raised, and that they should be decided by the Court, and appealed from the order directing a jury trial.
The answer of respondents presents important questions. We are, however, not required to consider them, for the reason that the issues presented have not been tried below. These pleas present serious and important issues of fact. McDonald v. Dickson, 85 N.C. 250; Isler v. Murphy, 71 N.C. 436.
The appeal was clearly premature, and can not be entertained. Hailey v.Gray, 93 N.C. 195;University v. Bank, 92 N.C. 651.
Appeal dismissed.
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