Edwards v. Perry

• Decision Date: 02 May 1934
• Docket Number: 390-A.
• Citation: 174 S.E. 285,206 N.C. 474
• Parties: EDWARDS et al. v. PERRY.
• Court: North Carolina Supreme Court

174 S.E. 285

206 N.C. 474

EDWARDS et al. v. PERRY.

No. 390-A.

Supreme Court of North Carolina

May 2, 1934

Appeal from Superior Court, Wake County; Barnhill, Judge.

Civil action by O. A. Edwards and another, administrators, and others against J. B. Perry. From the judgment, both sides appeal.

New trial ordered.

Civil action for an accounting with respect to transactions had between plaintiffs' intestate and the defendant over a period of approximately twenty years.

The defendant denied liability and set up a counterclaim.

At the April term, 1933, there was an order of reference by consent entered in the cause.

At the December term, 1933, the matter came on for hearing upon exceptions filed by both sides to the report of the referee. After a full consideration of the case, it was ordered Harris, J., presiding, with the consent of the parties, that certain issues raised by the exceptions be submitted to a jury at a subsequent term of court.

At the February special term, 1934, Barnhill, J., presiding, the order entered at the previous December term was stricken out ex mero motu, or disregarded, on the ground that a jury trial was not in order as the original reference was by consent and both parties had thereby waived their rights to a jury trial. To this ruling the plaintiffs objected and excepted.

The court thereupon considered the exceptions to the referee's report, sustained some, and overruled others and entered judgment accordingly.

Both sides appeal, assigning errors.

In action for accounting, order with consent of parties that certain issues raised by exceptions to referee's report be submitted to jury at subsequent term was valid, though it could not have been entered except by consent.

In action for accounting, order with consent of parties that certain issues raised by exceptions to referee's report be submitted to jury was not subject to review at subsequent term, and court erred in striking it out on its own motion.

E. D Flowers and J. G. Mills, both of Raleigh, for plaintiffs.

Gulley & Gulley, of Wake Forest, for defendant.

STACY Chief Justice.

The consent order entered at the December term, 1933, which provided for a jury trial upon certain issues, would seem to be valid. Deaver v. Jones, 114 N.C. 649, 19 S.E 637; Stump v. Long, 84 N.C. 616. True, it could not have been entered except by consent. Driller Co. v Worth, 117 N.C. 515, 23 S.E. 427; Lance v. Russell, ...