Foy v. . Gray
148 N.C. 436
N.C.
1908
Check Treatment

Plaintiff appealed. The plaintiff did not docket his appeal "seven days before the call of the cases of the district to which it belongs." Rule 5. If the appellee had moved to dismiss at that time or at any later day prior to the actual docketing of the transcript on appeal, the motion *Page 326 must have been allowed. Rule 17. But the appellee deferred making the motion till the call of the district had begun, and before that time the appeal had been docketed. The appellee was thus himself guilty of laches, and his motion to dismiss is denied. Craddock v. Barnes, 140 N.C. 428; Curtis v.R. R., 137 N.C. 308.

The account between the parties was heard upon a reference by consent. Both sides excepted to the referee's findings, and on appeal the Judge overruled all exceptions and confirmed the report. When the Judge sustains the findings by the referee his ruling is (437) conclusive, except as to those findings of fact as to which there is no evidence to support them, and that ground is set out in the exception. Dunavant v. R. R., 122 N.C. 999; Collins v. Young,118 N.C. 265. There are only two exceptions of that nature, i. e., to the seventeenth and twenty-seventh findings of fact, and as to them we find the exception not well taken.

The appellant insists that we "review all the evidence and findings" in this case. But we are bound by the referee's findings of fact, when approved by the judge (if there is any evidence on the finding excepted to), fully as much as we are by the finding on an issue by a jury.

We find no error in the rulings as to the law.

Affirmed.

Cited: Mitchell v. Melton, 178 N.C. 88.