Smith v. Hicks

108 N.C. 248 | N.C. | 1891

MerrimoN, C. J.:

The defendant’s counsel insisted on the argument here that the reference was made by the Court with the consent of the parties and, therefore, the Court itself should have reviewed the findings of fact by the referee and approved, modified or reversed the same, and should not have submitted the issue of fact to the jury. We are of that opinion and, therefore, the first exception must be sustained.

The nature of the action was such as to require an account to be taken. To that end, the Court made the order of reference in the presence of the parties and their counsel. In the absence of objection, the reasonable and just implication and inference was that they assented to and sanctioned it. That they did, and that such a reference is made by consent, is clearly settled by numerous decisions of this Court. Moreover, such consent is in effect a waiver of the right to a trial by jury. The parties thus consented that the referee might find the facts, subject to the right and duty of the Court in a proper case to supervise such findings. Armfield v. Brown, 70 N. C., 27; Atkinson v. Whitehead, 77 N. C., 418; White v. Utley, 86 N. C., 415; Grant v. Hughes, 96 N. C., 177; Nissen v. Mining Co., 104 N. C., 309; Morrisey v. Swinson, id., 555; Battle v. Mayo, 102 N. C., 434, and there are other like cases.

The defendant objected to submitting the issue of fact to the jury. The Court ought not to have compelled him to submit to the trial by jury, because, as the parties assented to the reference, the order in that respect would not ordinarily be stricken out or materially modified without the consent of both parties. Perry v. Tupper, 77 N. C., 413; Flemming v. Roberts, id., 415; White v. Utley, supra; Patrick v. Railroad, 101 N. C., 602; Morrisey v. Swinson, supra.

The plaintiff’s counsel insisted on the argument, that if the plaintiff was not entitled to a trial by jury (as he insisted he was) because of the reference, still the Court might submit the issue of fact to the jury with a view to aid itself in the exercise of its supervising control over the findings of fact by the referee. If it be granted that in some cases the Court might, for such purposes, submit issues of fact to á jury, it did not, nor did it purport to do so in this- case. It proceeded erroneously on the ground that the reference was compulsory and, therefore, the plaintiff was entitled to atrial by jury; it hence framed what it deemed an appropriate issue, submitted the same to a jury, and upon their verdict founded its judgment, without itself reviewing the findings of fact by the referee in any respect or at all. The prime error of the Court consisted in treating the order of reference as compulsory. It should have held that it was assented to by the parties, and proceeded to review the findings of fact by the referee and sustained or overruled, in whole or in part, the exception, and given judgment accordingly.

There is error. The judgment must be reversed, and the case disposed of according to law.

Error.