Booker v. Town of Highlands

• Decision Date: 12 February 1930
• Docket Number: 616.
• Citation: 151 S.E. 635,198 N.C. 282
• Parties: BOOKER v. TOWN OF HIGHLANDS.
• Court: North Carolina Supreme Court

151 S.E. 635

198 N.C. 282

BOOKER v. TOWN OF HIGHLANDS.

No. 616.

Supreme Court of North Carolina

February 12, 1930

Appeal from Superior Court, Macon County; McElroy, Judge.

Action by Warren H. Booker against the Town of Highlands. A reference was ordered, and the referee's report was not wholly favorable to either party. The defendant filed exceptions to the referee's report, tendered issues, and demanded a jury trial, and the plaintiff filed exceptions but no issues were tendered, and from an order holding that the defendant was entitled to a jury trial on the issues tendered and raised by the pleadings, plaintiff appeals. Affirmed.

Civil action by plaintiff to recover of defendant $2,381.44 balance alleged to be due for engineering services rendered in connection with the construction of a hydro-electric plant and sewer system. The defendant denied liability and set up a number of counterclaims, aggregating $28,406.30, for losses alleged to have been sustained by reason of plaintiff's incompetence, negligence, and want of skill in supervising the work in question.

At the instance of the plaintiff, and over the objection and exception of the defendant, a reference was ordered and the matters heard by Hon. J. D. Mallonee, who found the facts and reported the same, together with his conclusions of law, to the court. In his report, the referee disallowed the defendant's counterclaims in toto, and concluded that the plaintiff was entitled to recover the sum of $1,889.10, with interest. The report, therefore, was not wholly favorable to either party, being adverse to the defendant and only partially favorable to the plaintiff, and was accordingly objectionable to both.

The defendant objected and excepted to the order of reference at the time it was made, duly filed exceptions to the report of the referee, tendered appropriate issues, and demanded a jury trial on the issues thus tendered and raised by the pleadings. Thereafter the plaintiff filed exceptions to the report of the referee, but no issues were tendered on these exceptions, either by the plaintiff or the defendant.

When the matter came on for hearing at the April term, 1929, the plaintiff moved the court to consider and pass upon the exceptions filed to the report of the referee, by both plaintiff and defendant, without submitting any issues to the jury, contending that the defendant had waived its right to a jury trial by failing to tender issues on the plaintiff's exceptions. The defendant resisted this motion and demanded a jury trial on the issues already tendered by it upon its own exceptions.

From an order holding that the defendant was entitled to a jury trial on the issues tendered and raised by the pleadings, the plaintiff appeals, assigning error.

Jones & Jones, of Franklin, and Tillett, Tillett & Kennedy, of Charlotte, for appellant.

George B. Patton, of Franklin, and Edwards & Leatherwood, of Bryson City, for appellee.

STACY C.J. (after stating the case).

It may be conceded that, up to the time plaintiff filed his exceptions to the report of the referee, the defendant had preserved its right to a jury trial, as an examination of the record discloses that objection was duly entered to the order of reference, and, on the coming in of the referee's report, exceptions were filed thereto in apt time appropriate issues properly tendered, and a jury trial demanded on the issues thus tendered and raised by the pleadings. Brown v. Broadhurst, 197 N.C. 738, 150 S.E. 355.

The appeal, therefore, presents the single question as to whether the defendant, under the circumstances disclosed by the record, waived its right to a jury trial simply because it failed to tender issues on the plaintiff's exceptions. We think not, as appropriate issues had already been tendered on the defendant's exceptions, and it would serve no useful purpose to require their virtual retender. "Cessante ratione cessat et lex."

True, it has been held by us that, when a compulsory reference is ordered, the party who would preserve the right to have the issues found by a jury must duly except to the order of reference, and, on the coming in of the referee's report, if it be adverse, he must file exceptions thereto in apt time, properly tender appropriate issues, and demand a jury trial on each of the issues thus tendered, and, if the referee's report be in his favor, he must seasonably tender issues on the exceptions, if any, filed to the report by the adverse party, and demand a jury trial thereon, or else the right to have the controverted facts determined by a jury will be deemed to be waived, so far as he is concerned. Jenkins v. Parker, 192 N.C. 188, 134 S.E. 419; Baker v. Edwards, 176 N.C. 229, 97 S.E. 16; Driller Co. v. Worth, 117 N.C. 515, 23 S.E. 427; Id., 118 N.C. 746, 24 S.E. 517.

But, in the instant case, the report of the referee was not satisfactory to either party. It was adverse to the defendant and only partially favorable to the plaintiff. Both sides filed exceptions to it. Hence the rule requiring a party to tender issues on the exceptions filed by his adversary and demand a jury trial thereon, in order to preserve his right to have...