146 S.E. 68 | N.C. | 1929
The plaintiff as receiver for the Security Savings Bank instituted an action against the defendants, who were stockholders in said Savings Bank, to compel said stockholders to pay to said receiver their stock liability. Pleadings were filed by the defendants, and at the April Term, 1927, Judge Finley, finding that the cause "would require the taking of a long account," referred the case to a referee. There was no objection or exception to the order of reference and no demand for a jury trial. Thereafter, the parties appeared before the referee who declined to permit the introduction of certain books and records offered by the plaintiff, and further declined to permit the plaintiff to introduce certain pertinent evidence upon the questions involved in the suit. The referee made his report, and exceptions were filed by the plaintiff, who requested the court "to set aside the referee's report and the order of reference and to proceed with the trial of this cause." No issues, however, upon the exceptions were tendered by the plaintiff. Thereupon, *429 the trial judge found as a fact "that the referee's actions were sincere and honest, but the court being of the opinion that the exclusion of the evidence and the books was erroneous, and that the books should have been admitted in evidence, under testimony of witnesses, for identification. It is therefore ordered that the report of the referee be, and the same is set aside and the order of reference heretofore made is revoked to the end that this cause may be set down for trial by a jury at such day as plaintiff and defendant may agree upon, at the convenience of the court."
To the foregoing judgment the defendants appeal, assigning error. Can a trial judge revoke an order of compulsory reference, made without objection or exception, and set the cause for trial by a jury?
The principle of law applicable to the facts disclosed by the record was stated in Rogers v. Lumber Co.,
Does the failure of a party to except to the order of compulsory reference or to preserve his right of trial by a jury, as pointed out in the decisions, deprive the trial judge of power to revoke such order of reference? This question was definitely answered in the case of Smith v.Hicks,
In the case at bar the referee misconceived his duty. C. S., 577, requires referees to receive and preserve the testimony "of all witnesses on both sides," and to file the testimony with his report. While the referee has power to rule upon the competency of evidence offered by a party or to exclude such testimony from his consideration in making up his report, nevertheless this power must be exercised in subjection to the ultimate right of the parties to have the trial judge to "review the report, and set aside, modify or confirm it in whole or in part," etc.Mills v. Ins. Co., ante, 223. The trial judge cannot intelligently review the report, modify or confirm it, unless the evidence offered by the parties is before him. If a referee refuses to comply with the order of reference, or otherwise fails to perform the duties contemplated by law, the trial judge has the power to remove him, but under the authorities recognized and applied in this jurisdiction, the trial judge has no power to revoke an order of reference under the circumstances disclosed by this record.
Reversed. *431