27 S.E. 124 | N.C. | 1897
In all controversies respecting property the parties are entitled to a trial by jury. Const., Art. I, sec. 19. In all issues of fact joined in any court the parties may waive a jury trial and submit the findings of fact to the Judge. Const., Art. IV, sec. 13. All such *309 issues may be referred for trial by consent of parties, The Code, secs. 420 and 423, and the Court may order a compulsory reference on its own motion, sec. 421.
In the case before us a compulsory reference was ordered, and on the trial before the referee the defendants repeated their demand for a jury trial. The referee tried the case and reported his findings of fact and law, and the defendants excepted to the findings of fact, and renewed their exception to the reference and demanded a jury trial. At the conclusion of each exception to certain findings of fact the defendants reiterated their demand for a jury trial upon that exception. At the hearing his Honor ordered a trial by jury and continued the case for that purpose. The plaintiff excepted and appealed.
Every litigant has this constitutional right of trial by jury, unless he voluntarily waives the privilege. Green v. Castlebury,
In Driller Co. v. Worth,
The contention between the parties was to the ownership of certain moneys in the hands of one Rankin at the death of J. W. Wilson. The referee found adversely to the defendant's contention. The exception was that the finding was erroneous upon the evidence, and that he should have found "that the said Wilson simply deposited the said money *310 and the said bonds with the said Rankin for safe keeping, as such deposits are made in a bank, and the said Rankin so held the said money and bonds at the time of said Wilson's death, as such depositary, and in the same manner as a bank would hold such deposits."
There were eight findings of fact, but a jury trial was (449) demanded by the exceptions in only four. The plaintiff could not fail to see from said exceptions, in connection with the pleadings, what the issue for the jury would be, and she was, therefore, in a condition to prepare for the contest.
The defendants certainly intended at every step to save their right of jury trial, and it appears to this Court that they did so.
Affirmed.
Cited: Featherstone v. Wilson,