3 N.C. App. 295 | N.C. Ct. App. | 1968
We note at the outset that appellants in their brief have not cited the official North Carolina Reports when citing cases decided by the Supreme Court of North Carolina in support of their argument and contentions. Rather, they have cited only the Southeastern Reporter to support their view of the applicable law. Rule 46 of the Rules of Practice in the Court of Appeals of North Carolina states that as to the citation of reports, “Supreme Court Rule No. 46 applies.” We interpret Rule No. 46 of the Supreme Court of North Carolina to mean that the official volumes of the North Carolina Reports should be cited when counsel seek to rely on North Carolina case law in support of their position.
Defendants contend that the trial court committed error in ordering a compulsory reference. It should be noted that defendants had moved, in writing, for the appointment of a referee and that this motion was still pending at the time the court on its own motion ordered a compulsory reference. Defendants argue here that their request for a reference is different in scope from that ordered by Judge Bundy. Perhaps there was a difference in defendants’ motions dated in September 1965 and 14 June 1966, and this was noted by the judge, and that is why, on his own motion, he ordered that all of the issues, both of fact and of law, be referred as provided by the statute.
Defendants asserted in their pending motion for a reference that this case presents a complicated question of boundary requiring a personal view of the premises. The statute, G.S. 1-189, in pertinent part provides:
“Where the parties do not consent, the court may, upon the application of either, or of its own motion, direct a reference in the following cases:
3. Where the case involves a complicated question of boundary, or one which requires a personal view of the premises.
The compulsory reference under this section does not deprive either party of his constitutional right to a trial by jury of the issues of fact arising on the pleadings, but such trial shall be only upon the written evidence taken before the referee.”
Having admitted the necessity of a reference, the defendant appellants were not in a position to demand that the judge limit the
“An issue of law must be tried by the judge of court, unless it is referred. An issue of fact must be tried by a jury, unless a trial by jury is waived or a reference ordered. Every other issue is triable by the court, or judge, who, however, may order the whole issue, or any specific question of fact involved therein, to be tried by a jury, or may. refer it.” (emphasis added)
Clearly under the provisions of this statute, Judge Bundy was authorized to order a compulsory reference as to “all of the issues, both of fact and of law . . .”
In addition to the verified motion filed by the defendants in this cause, the pleadings and the record on appeal reveal that this case is one involving a complicated question of boundary. Judge Bundy correctly, in conformity with the course and practice of our courts and in the exercise of his discretion under the statute, ordered a compulsory reference. G.S. 1-189; Sledge v. Miller, 249 N.C. 447, 106 S.E. 2d 868; White v. Price, 237 N.C. 347, 75 S.E. 2d 244; Veazey v. Durham, 231 N.C. 354, 57 S.E. 2d 375; Fibre Co. v. Lee, 216 N.C. 244, 4 S.E. 2d 449.
A compulsory reference does not deprive one of the right to trial by jury. The contention of the appellants that the compulsory reference has denied them the right to a trial by jury is without merit and requires no discussion.
Another of defendants’ assignments of error relates to Judge Bundy’s making the following entry declining to fix an appeal bond. “The court being of the opinion that an appeal at this time is premature, declines to fix an appeal bond.”
“A Superior Court Judge can neither allow nor refuse an appeal.” Harrell v. Harrell, 253 N.C. 758, 117 S.E. 2d 728. “As a rule no appeal may be taken until the reference is completed and a final judgment rendered; but in a compulsory reference ordered against objection when a plea in bar has been interposed or when the parties demand a jury trial, the party objecting has the option to appeal at once, or to note an exception, proceed with the trial before the referee and have the exception considered on appeal from the final judgment.” McIntosh, N. C. Practice 2d, § 1407; Harrell v. Harrell, supra.
We granted certiorari upon the petition of the defendants, and after carefully reviewing all of the assignments of error are of the
The order of compulsory reference is affirmed and the cause is remanded for further proceedings according to law.
Affirmed.