26 S.E.2d 904 | N.C. | 1943
This was an action to recover damages for the alleged breach of contract for the cutting and delivery of pulp wood. The case was here at Spring Term, 1939, reported in
From judgment on the verdict, plaintiff and defendants appealed. DEFENDANTS' APPEAL. Both plaintiff and defendants excepted to the order of compulsory reference entered by Judge Grady, but the decision of the referee being in favor of the defendants, they filed no exceptions to the report. However, the plaintiff did file exceptions to the referee's findings and conclusions, demanded jury trial and tendered appropriate issues. The defendants moved that the report of the referee be confirmed. This was denied, and the issues which were raised by the pleadings and pointed by the plaintiff's exceptions to the referee's findings, were submitted to the jury upon the evidence which had been considered by the referee, and verdict was returned in favor of the plaintiff. Defendants' motion to confirm the referee's report, on the ground that plaintiff had not preserved his right to trial by jury, was properly denied.
Defendants assign error in the ruling of the court in the trial below with respect to their right to have their objections to certain testimony considered. The question arose out of these facts. It had been agreed, by written stipulation, by counsel for the parties in the hearing before the referee that in lieu of offering oral evidence the stenographer's transcript of the sworn testimony of the witnesses offered in a previous trial of the case in the Superior Court, together with the exhibits, should constitute the evidence before the referee. When this evidence, which had been presented to and considered by the referee under the stipulation, was offered before the jury in the present trial in the Superior Court, it *380 was ruled that under the terms of the stipulation all this evidence was in without objection, and the court declined to rule on the objections which had been interposed when the testimony was originally offered. Whether the court was correct in its interpretation of the effect of the stipulation need not be decided since upon examination of the record we find that the only objections there appearing were to testimony which was competent for the purpose of corroboration, and the jury was so instructed. Hence defendants' assignment of error based on this ground cannot be upheld. It was not contended that defendants could be heard to offer new objections.
The defendants in their argument and brief question the constitutionality of the statute authorizing compulsory reference as being an infringement upon the right of trial by jury. Right to trial by jury is a basic and fundamental feature of our system of jurisprudence. Jacob v.City of New York,
Whether the reference was within the purview of C. S., 573, is not presented as the defendants did not move to strike out the reference, but on the contrary moved to confirm the report and excepted to the court's denial of their motion. Reynolds v. Morton,
We conclude that there was no error in the trial below which would warrant another trial of this case.
PLAINTIFF'S APPEAL.
The only exceptions brought forward by the plaintiff in his assignments of error relate to the judge's charge to the jury on the issue of damages. From an examination of the charge on this phase of the case, we are left with the impression that the instructions to the jury were free from error, and that the plaintiff has no just ground of complaint.
On defendants' appeal: No error.
On plaintiff's appeal: No error.