Armfield v. Brown
| Decision Date | 30 June 1875 |
| Citation | 73 N.C. 81 |
| Parties | STATE on the relation of H. B. ARMFIELD and M. L. ARMFIELD v. JOHN D. BROWN, THOMAS E. BROWN and LUKE BLACKMER. |
| Court | North Carolina Supreme Court |
*1 Where the parties to an action have mutually agreed to a reference, they cannot after an adverse decision, as a matter of right, claim a trial of the issues arising in the cause, by a jury.
Every Court has the power to amend its records, so as to make them speak the truth; but when a Court, after hearing evidence, refuses to amend its records, no appeal lies from such refusal.
A guardian is responsible not only for what he receives, but for all he might have received, by the exercise of ordinary diligence and the highest degree of good faith.
CIVIL ACTION, tried before Wilson, J., at Fall Term, 1874, ROWAN Superior Court.
This case was before this Court at January Term, 1874, and is fully reported in 70 N. C. Rep., 27.
The defendants after notice and upon affidavits filed in the cause, moved the Court to amend the record, nunc pro tunc, so as to show that the order of reference heretofore made was not by consent, but compulsory, which motion was refused by the Court.
To the ruling of his Honor, the defendants excepted.
The defendants then moved the Court for a jury to try the issues of fact arising on the referee's report, which motion was also refused, and the defendants again excepted.
The case was then heard upon the exceptions to the referee's report, and the exceptions were overruled and the report confirmed.
From the judgment of the Court confirming the report of the referee, the defendants appealed.
W. H. Bailey, for appellants .
Craige & Craige, Jones & Jones, contra .
1. When this case was before us on a point of practice involving the right of a party to have issues tried by a jury, after a reference by consent, we held “that the reference in this case was by consent duly given, and that parties, after selecting their forum and meeting with an adverse decision, will not be allowed as a matter of right to turn round and successfully assert a right which they had renounced.” Armfield v. Brown, 70 N. C. Rep., 27. In the face of this decision the defendant moved the Court for a jury to try the issues of fact arising on the referee's report, and makes the denial of the motion a point of appeal to this Court. Comment is unnecessary. Lippard v. Roseman, 72 N. C. Rep., 427.
*2 2. As to the motion of the defendant to amend the record, nunc pro tunc, so as to show that the order of reference heretofore made in this case was not by consent, but was compulsory, we have only to say, every Court has the power to amend the entries on its records so as to make them speak the truth, but when a Court, after hearing the evidence, in...
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Kuykendall v. Proctor, 685
...his estate, and May bring All necessary actions therefor.' (Emphasis added.) As stated by Settle, J., speaking for the Court, in Armfield v. Brown, 73 N.C. 81: 'A guardian is liable not only for what he receives, but for all he ought to have received of his ward's estate. And while infallib......
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Anderson v. Anderson
...by him, had he exercised reasonable diligence and ordinary prudence in caring for his ward's estate." Or as stated in State ex rel. v. Brown et al., 73 N.C. 81: "A guardian is liable, not only for what he but for all he ought to have received of his ward's estate; and, while infallible judg......
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Anderson v. Anderson
...by him, had he exercised reasonable diligence and ordinary prudence in caring for his ward's estate." ¶5 Or as stated in State ex rel. v. Brown et al., 73 N.C. 81:"A guardian is liable, not only for what he receives, but for all he ought to have received of his ward's estate; and, while inf......