Baker v. J. J. Edwards & Son

• Decision Date: 16 October 1918
• Docket Number: 254.
• Citation: 97 S.E. 16,176 N.C. 229
• Parties: BAKER v. J. J. EDWARDS & SON.
• Court: North Carolina Supreme Court

97 S.E. 16

176 N.C. 229

BAKER v. J. J. EDWARDS & SON.

No. 254.

Supreme Court of North Carolina

October 16, 1918

Appeal from Superior Court, Wake County; W. P. Stacy, Judge.

Action by D. A. Baker against J. J. Edwards & Son. From a judgment for defendant, plaintiff appeals. Affirmed.

Where after excepting to compulsory reference, plaintiff neither filed exceptions to referee's report finding in his favor nor tendered issues for jury on defendant's exceptions to the report, but opposed defendant's exceptions, and the judge found for defendants, plaintiff is precluded from claiming a jury trial.

Civil action tried on exceptions to the report of a referee.

The following is the statement of the case on appeal, as agreed upon and signed by the attorneys of the respective parties omitting some formal and inmaterial parts:

This was a civil action in the superior court of Wake county. After the pleadings were filed and the trial entered into before Judge Charles M. Cooke and a jury, the court of its own motion made an order referring the case to Murray Allen, Esq., as appears in the record. To this order both plaintiff and defendants excepted and reserved their respective rights to a jury trial.

The referee executed the order of reference, and made his report to the April term, 1917, of the superior court of Wake county. At said term of court, by consent an order was made allowing both parties 60 days in which to file exceptions to the report of the referee, as of April term, 1917. That term of court ended May 4, 1917; and defendants filed their exceptions on June 30, 1917, which appear in the record. Plaintiff did not file exceptions. The case was calendared for hearing on trial and motion dockets upon defendant's exceptions at more than one term of court in the fall of 1917, but, not being reached for trial, was continued.

The exceptions came on to be heard before his honor, Judge W. P Stacy, at the January 2, 1918, civil term of the superior court of Wake county, and was heard and fully argued by counsel on both sides. His honor took the evidence and typewritten briefs on behalf of plaintiff and defendants and, after considering the same, announced he had reached a conclusion different from that of the referee, and he was of the opinion that plaintiff had not sustained his contention and would sustain the exceptions and find the facts from the evidence according to defendant's contention. Whereupon, for the first time since the reference by Judge Cooke, plaintiff demanded a jury trial or that the case be remanded to the referee, and plaintiff tendered the issue stated in record. His honor refused to submit the case to the jury or to remand it to the referee, and stated that viewing the evidence as he did he would render judgment in favor of the defendants, except that the plaintiff would be allowed to cash the check given him by the defendants and which he had held. His honor suggested to defendants to submit form of judgment to him the next morning. This was done, and his honor asked if there was any objection to the form of the judgment. Plaintiff's counsel stated that the judgment was in proper form, but again contended that plaintiff had the right to a trial by jury upon the issue tendered, and again demanded a jury trial. His honor refused to submit the issue to the jury. Plaintiff excepted. His honor rendered the judgment set out in the record, to which plaintiff excepted.

Plaintiff insisted upon his right to have the issue tried by jury, and excepted to a refusal of the same and appealed.

The plaintiff assigned the following errors:

"(1) That his honor refused to submit the issue tendered by the plaintiff; the reference being a compulsory reference, and the plaintiff having excepted to the order of reference and reserved his right to a trial by jury.

(2) That his honor signed the judgment set out in the record."

Manning & Kitchin, of Raleigh, for appellant.

A. Jones & Son and James H. Pou, all of Raleigh, for appellee.

WALKER, J. (after stating the facts as above).

There appears to be but one assignment of error in this appeal, which is that the court refused the plaintiff's request for a trial by jury under the circumstances detailed in the statement of the facts by us. We discover no error in this ruling.

The procedure to be followed, when a party has duly excepted to a compulsory reference, and thereby reserved his constitutional right to trial by jury, has been so often considered, and so thoroughly settled, that we need do little more than refer to some of the precedents. Driller Co. v. Worth, 117 N.C. 515, 23 S.E. 427; Id., 118 N.C. 746, 24 S.E. 517; Taylor v. Smith, 118 N.C. 127, 24 S.E. 792; Kerr v. Hicks, 133 N.C. 175, 45 S.E. 529; Ogden v. Land Co., 146 N.C. 443, 59 S.E. 1027; Simpson v. Scronce, 152 N.C. 594, 67 S.E. 1060; Pritchett v. Supply Co., 153 N.C. 344, 69 S.E. 249; Mirror Co. v. Casualty Co., 153 N.C. 373, 69 S.E. 261; Robinson v. Johnson, 174 N.C. 232, 93 S.E. 743; and Loan Co. v. Yokley, 174 N.C. 573, 94 S.E. 102.

In Simpson v. Scronce, supra, we said:

"It further appears that 'upon said exceptions the plaintiff demanded a trial of the same by a jury.' He did not tender any issue as to any controverted fact which he desired to be submitted to a jury, but simply asked, in a general way, for a jury trial upon the exceptions filed by him. Some of the exceptions involved questions of law, and of course they could not be tried by a jury, and if, upon any exceptions which involved an issue of fact, the plaintiff wished to have a jury trial, he should have tendered the proper issue." And in Driller Co. v. Worth, supra, it was held:

"Where a party promptly insists upon reserving his right of trial by jury, and causes his objection to be entered of record, when the compulsory order of reference is made, he may still waive by failing to assert it in his exceptions to the referee's report. Harris v. Shaffer, 92 N.C. 30; Yelverton v. Coley, 101 N.C. 248 [7 S.E. 672]. The law implies that the party objecting will give timely notice of the specific points upon which he elects to demand a trial by jury instead of submitting to the findings of the referee, in order that the opposing party may know how to prepare to meet him by summoning the material witnesses if necessary."

And again:

"Although a party has his objection to a compulsory reference entered in apt time, he may waive his right to a trial by jury by failing to assert it definitely and specifically in each exception to the referee's report. Where there was a compulsory reference objected to by defendants, and the referee filed 14 findings of fact, some of which related to questions not in issue under the pleadings, and defendants filed exceptions to the findings, a demand at the end of their exceptions for a jury trial on all the issues raised thereby was too general to entitle them to such a trial."

Justice Brown says, in Alley v. Rogers, 170 N.C. 538, 87 S.E. 326:

"It has been frequently held that, although a party duly enters his objection to a compulsory reference, he may waive it by failing to assert such right definitely and specifically in each exception to the referee's report, and by failing to file the proper issues"--citing Driller Co. v. Worth, supra, and cases in annotated edition; Keerl v. Hays, 166 N.C. 553, 82 S.E. 861.

But the case of Robinson v. Johnson, supra, is decisively against the appellant's contention. We said in that case:

"Plaintiffs have clearly waived their constitutional right to the trial of the issues in the case by a jury, as they failed to except to the referee's report, and did not tender any issues at all, not even on the defendant's exceptions. This was really tantamount to an agreement on their part that the judge should pass upon the defendant's exceptions without a jury. Numerous cases support the view that there was a clear waiver of trial by jury"--citing cases.

The case of Loan Co. v. Yokley, supra, is more like this one than any of the others we have cited. There it appears that plaintiff filed no exceptions, but was content with the report of the referee, which he deemed to be in his favor and defendant filed an exception, which was sustained; no objection, as here, being offered to the court passing upon it. But the exact identity of the two cases, both in fact and in law, will be better shown by quoting...