{
  "id": 8655718,
  "name": "P. H. DURHAM v. T. Y. HAMILTON et al.",
  "name_abbreviation": "Durham v. Hamilton",
  "decision_date": "1921-04-20",
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  "first_page": "232",
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    {
      "cite": "176 N. C., 550",
      "category": "reporters:state",
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  "last_updated": "2023-07-14T18:46:48.388810+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "P. H. DURHAM v. T. Y. HAMILTON et al."
    ],
    "opinions": [
      {
        "text": "IIoKE, J.\nWe find no error in tbe record affecting the determination of tbe issues, but tbe judgment in our opinion goes farther than tbe verdict warrants. As applied to tbe facts of this record, an adversary judgment is but tbe conclusion of tbe law from tbe facts admitted, or as established by tbe verdict, and must be within tbe scope and purport of tbe facts so ascertained and determined. Beyond that, tbe judgment is at best irregular and may at times be beld entirely invalid. Holloway v. Durham, 176 N. C., 550; Hobgood v. Hobgood, 169 N. C., 491; Williams v. Alexander, etc., 74 N. C., 1; Whitwell v. Hoover & Emory, 3 Mich., 84; S. v. Muench, 217 Mo., 124; 15 R. C. L., 569, title, Judgments, sec. 2.\nIn Holloway v. Durham, supra, it is beld \u201cTbat an adversary judgment of tbe court upon matters beyond tbe scope of tbe pleadings and wbicb undertakes to settle and determine those entirely foreign to tbe controversy is to tbat extent not binding, etc.\u201d\nIn S. v. Muench, supra, a judgment is defined as tbe \u201cSentence of tbe law upon tbe record; an application of tbe law to tbe facts and pleadings.\u201d A very proper and succinct definition is given in Whitwell v. Hoover & Emory, supra, \u201cTbat a judgment is tbe final consideration and determination of a court of competent jurisdiction upon tbe facts submitted to it.\u201d And again, in tbe citation to R. C. Law, it is said: \u201cA more precise definition is tbat a judgment is tbe conclusion of tbe law upon tbe matters contained in tbe record or tbe application of tbe law to tbe pleadings and tbe facts as found by tbe court or admitted by tbe parties, or deemed to exist upon tbeir default in a course of judicial proceedings.\u201d\nOn tbe present record, after awarding a recovery for tbe damages suffered, and tbat tbe further maintenance of tbe nuisance be restrained, tbe judgment proceeds as follows: \u201cAnd defendants are further ordered and directed-not to use or maintain or permit tbe use and maintenance on said premises of any bog-pen or cattle pen for use in connection with said slaughter-house or otherwise.\u201d Tbe condition and manner of conducting tbe bog-pens and cattle pens \u201cin connection with tbe slaughterhouse\u201d were very clearly shown to be a part of tbe nuisance and in great aggravation to tbe injury, and were properly prohibited, but in extending this prohibition by tbe term \u201cor otherwise\u201d this might very well be construed and operate to prevent tbe defendants from using tbeir property in tbe respects suggested as required by tbe course of good husbandry and in a way entirely harmless to plaintiff. To tbat extent we think tbe judgment is unauthorized by tbe facts established, and same should be modified by striking out tbe words \u201cor otherwise.\u201d With this modification tbe judgment is\nModified and affirmed.",
        "type": "majority",
        "author": "IIoKE, J."
      }
    ],
    "attorneys": [
      "B. G. Sirudwick, Wilson & Frazier, J. M. Hedgecock for plaintiff.",
      "T. W. Albertson, King, Sapp & King, Brooks, Hines & Kelly for defendant."
    ],
    "corrections": "",
    "head_matter": "P. H. DURHAM v. T. Y. HAMILTON et al.\n(Filed 20 April, 1921.)\n1. Judgments \u2014 Scope of Inquiry.\nAn adversary judgment is only the conclusion of law from the facts admitted or established by the verdict, and must loe within the scope and purport of the facts so ascertained and determined; and a judgment that goes further is irregular at least, and may. at times be held entirely invalid.\n3. Same \u2014 Nuisance\u2014Appeal and Error.\nWhere entered in the scope of the inquiry and upon properly established facts, a judgment for damages and an order restraining the defendant from maintaining a slaughter-house and connecting hog and cattle pen, as a nuisance affecting plaintiff\u2019s property, is a proper one; but where the judgment goes further and uses the additional words, \u201cor otherwise,\u201d such words may be construed and operate to prevent the defendant from using his property in a manner entirely proper and harmless to plaintiff, and will be ordered stricken out on appeal.\nAppeal by defendants from Bay, J., at October Term, 1920, of Guileord.\nTbe action is to recover damages for an alleged nuisance affecting tbe property pf plaintiff, and to restrain tbe further continuance of same, caused by tbe wrongful and improper maintenance by defendants of a slaugbter-bouse on a stream just above plaintiff\u2019s land, and aggravated by tbe condition of certain bog-pens, etc., as maintained in connection with said slaugbter-bouse, and causing damage, etc. On denial of liability, tbe jury rendered tbe following verdict:\n\u201c1. Did tbe defendants erect and maintain tbe nuisance as alleged in tbe complaint? Answer: \u2018Yes.\u2019\n\u201c2. What damages, if any, is tbe plaintiff entitled to recover ? Answer; \u00a3$600.\u2019 \u201d\nJudgment for amount of damages and tbat defendants be restrained, etc. Defendants except and appeal.\nB. G. Sirudwick, Wilson & Frazier, J. M. Hedgecock for plaintiff.\nT. W. Albertson, King, Sapp & King, Brooks, Hines & Kelly for defendant."
  },
  "file_name": "0232-01",
  "first_page_order": 284,
  "last_page_order": 285
}