Bernheim v. Waring

• Decision Date: 30 June 1878
• Citation: 79 N.C. 56
• Court: North Carolina Supreme Court
• Parties: C. H. BERNHEIM v. T. R. WARING and D. G. MAXWELL.

79 N.C. 56

C. H. BERNHEIM

v.T. R. WARING and D. G. MAXWELL.

Supreme Court of North Carolina.

June Term, 1878.

CIVIL

ACTION commenced in Cabarrus and removed to and tried at January Special Term, 1878, of ROWAN Superior Court, before Kerr, J.

At Fall Term, 1876, the plaintiff moved for a reference to the clerk to state an account of partnership dealings between him and defendant, Waring, to ascertain the amount due plaintiff as alleged in his complaint. The defendant, Maxwell, was surety upon a bond of his co-defendant conditioned for the faithful performance of the partnership contract. The said motion was opposed by Maxwell, and thereupon an order was made as follows: “Referred to J. M. Horah, clerk, to state an account, not to prejudice D. G. Maxwell.” The account was taken and filed at the subsequent term, to which no exceptions were either then or since made. Certain depositions tending to show that Waring did not owe plaintiff were considered by the referee in taking the account. When the case was called, the defendant, Maxwell, demanded that the issues be tried by a jury, after being refused leave to file exceptions to the referee's rcport. The Court declined to allow a jury trial and confirmed the report and gave judgment accordingly, and defendant, Maxwell, appealed.

Mr. Kerr Craige, for plaintiff .

Mr. W. H. Bailey, for defendant .

FAIRCLOTH, J.

The constitution guarantees the right of trial by jury to every one, and no one can be deprived of it except by his or her consent. When this consent is once given and some other mode of trial is adopted in the due course of proceeding, the right is gone and the suitor can no more return to it; but until it is given or waived or lost by negligence it remains unimpaired by any order of Court or by any action of other parties.

In the present case defendant Maxwell opposed the motion for a reference to state the partnership account between Waring and the plaintiff. The reference, however, was made without prejudice to him, Maxwell. At Fall Term, 1877, the cause was continued and this record made: “Report of referee filed--open for exceptions.” At the following special term of the Court held in January, being the first after the Fall Term, the defendant “Maxwell demanded a jury trial of the issues, having first asked leave to file exceptions to the report and been refused.” His Honor refused the motion and confirmed the report and rendered judgment accordingly for the plaintiff. No...