Page Trust Co. v. Pumpelly, 140 S.E. 212

Page Trust Co. v. Pumpelly

140 S.E. 212 | N.C. | 1927

Civil action to foreclose certain mortgages and deeds of trust.

At the February Term, 1926, "on motion of Mrs. Amelie R. Pumpelly and the other parties to the action," the cause was referred under the statute to Hon. R. C. Lawrence, who, in accordance with the usual course and practice, found the facts and reported same, together with his conclusions of law, to the court. On exceptions duly filed, and after hearing had thereon, the report of the referee was modified and approved by the judge of the Superior Court. All parties gave notice of appeal, but the appeals of Mrs. Amelie R. Pumpelly, Lexington Grocery Company and Standard Oil Company are the only ones which have been perfected. The others were abandoned, or they have been dismissed on motion. *581 The record in this case, which was first here at the Spring Term, 1926 (191 N.C. 675, 132 S.E. 594), is quite voluminous and contains more than is necessary to a proper understanding of the appeal. Indeed, its diffuseness is somewhat confusing. The immaterial matter, it is alleged, was inserted at the instance of the plaintiff. The appellee, therefore, will be allowed to recover cost of mimeographing "not to exceed sixty pages for a transcript and twenty pages for a brief." Rule 26, 192 N.C. p. 851. The balance of the cost of mimeographing the record and briefs will be taxed against the plaintiff.

The first exception imputes error to the trial court in denying appellants' motion for a jury trial on exceptions filed to the referee's report and issues tendered thereon. Jenkins v. Parker, 192 N.C. 188,134 S.E. 419; Baker v. Edwards, 176 N.C. 229, 97 S.E. 16. The ruling might well be upheld on the ground that a jury trial was waived when the reference was ordered "on motion of Mrs. Amelie R. Pumpelly and the other parties to the action," being as it was in effect at least, a consent reference. But outside of this the issues raised by the appellants are not sufficiently controverted to call for a jury trial (Bruce v. Nicholson. 109 N.C. 202, 13 S.E. 790), save perhaps the question of Mrs. Pumpelly's individual liability on certain notes executed by her husband, but not by herself. As to these, the judgment will be modified so as to relieve her of any individual liability thereon. The inclusion of these notes in the judgment against Mrs. Pumpelly was evidently an oversight on the part of the learned judge who heard the case in the Superior Court. The plaintiff has asked for no judgment against her on these notes. She signed the mortgage given to secure the payment of said notes, but not the notes themselves.

The remaining exceptions are unsubstantial and call for no elaboration. They are not sustained.

Let the judgment be modified as above indicated and, as thus modified, it will be upheld.

Modified and affirmed. *582