Anderson v. McRae

• Decision Date: 27 January 1937
• Docket Number: 748.
• Citation: 189 S.E. 639,211 N.C. 197
• Parties: ANDERSON v. McRAE.
• Court: North Carolina Supreme Court

189 S.E. 639

211 N.C. 197

ANDERSON v. McRAE.

No. 748.

Supreme Court of North Carolina

January 27, 1937

Appeal from Superior Court, Rockingham County; J. H. Clement, Judge.

Action by H. W. Anderson against J. A. McRae. From an adverse judgment, plaintiff appeals.

Error and remanded.

Civil action for partnership accounting, by consent referred to Jule McMichael, Esq., to state the account and report the same to the court, together with his conclusions of law.

Upon the coming in of the report, the plaintiff filed a number of exceptions thereto, and "moved the court to consider and pass upon the exceptions filed to the report of the referee. * * * This His Honor did not do. Plaintiff excepts."

The court modified the report in respect of two small items, and entered judgment: "It further appearing, with the exception of the two above items, that the finding of facts by the said Referee, as set out in his report, was supported by the evidence; * * * It is, therefore, adjudged * * * that the said Referee's report, except as herein above modified, be and the same is hereby approved and confirmed."

Plaintiff appeals, assigning errors.

Sharp & Sharp, of Reidsville, for appellant.

D. F Mayberry and Hunter K. Penn, both of Reidsville, for appellee.

STACY Chief Justice.

The record states that "His Honor did not * * * pass upon the exceptions," and in effect that he approved the factual findings of the referee, with two slight changes because they were "supported by the evidence." This is not in keeping with the usual practice in such cases.

True, in a consent reference, upon exceptions duly filed, the judge of the superior court, in the exercise of his supervisory power and under the statute, C. S. § 578, may affirm, amend, modify, set aside, make additional findings and confirm, in whole or in part, or disaffirm the report of a referee. Hardaway Contracting Co. v. Power Co., 195 N.C. 649, 143 S.E. 241; State v. Jackson, 183 N.C. 695, 110 S.E. 593; Vaughan v. Lewellyn, 94 N.C. 472. See, also, Maxwell, Com'r v. R. Co., 208 N.C. 397, 181 S.E. 248; Corbett v. R. Co., 205 N.C. 85, 170 S.E. 129; Wilson v. Allsbrook, 205 N.C. 597, 172 S.E. 217. This he may do, however, only in passing upon the exceptions, for in the absence of exceptions to the factual findings of a referee, such findings are conclusive ( Bank of Rose Hill v. Graham, 198 N.C. 530, 152 S.E. 493), and where no exceptions are filed, the case is to be determined upon the facts as found by the referee ( Salisbury v. Lyerly, 208 N.C. 386, 180 S.E. 701; Wallace v. Benner, 200 N.C. 124, 156 S.E. 795).

Nor is it accordant with precedent for the judge of the superior court, in considering exceptions to the factual findings of a referee, to approve such findings simply because they are supported by the evidence. Thompson v. Smith, 156 N.C. 345, 72 S.E. 379.

Speaking to the subject in Dumas v. Morrison, 175 N.C. 431, 95 S.E. 775, 777, Walker, J., delivering the opinion of the court and pointing out the difference between the duties of the trial court and the appellate court in dealing with exceptions to reports of referees, said: "It must be remembered that a judge of the superior court, in reviewing a referee's report, is not confined to the question whether there is any evidence to support his findings of fact, but he may also decide that while there is some such evidence, it does not preponderate in favor of the plaintiff, and thus find the facts contrary to those reported by the referee. The rule is otherwise in this court when a referee's report is under consideration. We do not review the judge's findings, if there is any evidence to support them, and do not pass upon the weight of the evidence."

Again in Thompson v. Smith, supra, the same learned justice said "When exceptions are taken to a referee's findings of fact and law, it is the duty of...