Green v. Castlebury

• Decision Date: 31 January 1874
• Citation: 70 N.C. 20
• Parties: CALVIN J. and ASA GREEN v. VERBIN CASTLEBURY.
• Court: North Carolina Supreme Court

70 N.C. 20

CALVIN J. and ASA GREEN

v.VERBIN CASTLEBURY.

Supreme Court of North Carolina.

January Term, 1874.

There are three modes of trial provided for by the Code.

1. Trial by jury.

2. Trial by the Court.

3. Trial by referees.

If a reference is made by consent, it is a mode of trial selected by the parties, and is a waiver of the right of trial by a jury.

If no exceptions be taken before the referees, and their report go up without exceptions, and either party desire to except, then and there in term time, he must be permitted to do so. And then his Honor must pass upon them, as if they had been taken before the referees.

Where a report is made under a compulsory reference, and exceptions are filed, and issues made by these exceptions, either party has the right to have the issues tried by a jury; because, not having waived a trial by jury, as is done when the reference is by consent, the party has a constitutional right to a trial by jury.

Section 246, C. C. P., construed, and the practice under the same settled and fully explained.

CIVIL ACTION, (for the dissolution of a copartnership, and account, and appointment of a receiver,) tried before his Honor, Judge Tourgee, at the Fall Term, 1873, of Orange Superior Court.

The following is the case as settled and sent up to this Court by his Honor:

“In this action, Calvin E. Parrish having been heretofore appointed referee and receiver, and his reports, both as referee and receiver, having been separately filed in accordance with an order and rule of this Court at least ten days before the present term; at this term the plaintiff moved, without notice, to review the report of the referee, upon exceptions presented to the Court, and not upon a case made out and settled by the referee. The Court refused to hear the motion to review upon exceptions, without notice given in accordance with section 247, C. C. P., last clause, p. 91, unless it were upon a case stated upon exceptions, as provided in secs. 146 and 142, C. C. P. In this connection I would call the attention of the Supreme Court to what I am satisfied is a misprint in section 242. The words used in that section are ‘a case or exceptions' and ‘a case or exception,’ both of them evidently designed to have been ‘a case on exceptions,’ as a reference to the kindred provisions under appeals will disclose.

The plaintiff in this case having given no notice of the motion to review, and failing to submit a case settled by the referee upon exceptions taken before him at the trial as required:

The Court is of opinion that under section 246, the report of a referee cannot be reviewed except upon a case stated. This section provides that the decision may be excepted to and reviewed in like manner and with like effect, in all respects as in cases of trial by the Courts. This can only be by case stated. This seems to be the more reasonable from the fact that the referee is not required nor expected so report the evidence, nor file any account of the trial had before him, beyond his findings. How then, shall the Court know what was done before the referees, what exceptions taken, what rulings made, what evidence received, except upon a case made up before him? For these reasons the Court refused to hear the exceptions, or allow them to be filed in the cause, and ordered the report of the referee to be confirmed.

From this order the plaintiffs appealed.

Battle & Son for appellants .

J. W. and A. W. Graham submitted for defendant , that

The effect of report and mode of review is prescribed in secs. 246 and 242, C. C. P. The referee may settle a case or exceptions in like manner as the Judge may do when there has been a trial by the Court or by the jury, sec. 242.

This power of referee is fully sustained by decisions in Wait's annotated Code, sec. 268. “When any finding upon a question of fact is sought to be reviewed, the case must contain the evidence bearing upon such question.” Hunt v. Bloomer, 12 How., 567; see Wait's Code, judgments reviewed. The precise error must be pointed out, and a statement showing the evidence made by referee.

“In settling a case or exceptions for a review of his decision, the referee is required briefly to specify therein the facts found by him, and his conclusions of law.” Wait's Code, sec. 273, and cases cited.

A special report of the evidence must be obtained from the referee, as the basis of a motion to set aside the report. The affidavit of a party cannot be received in its stead. Belmont v. Smith, 1 Dev. 675.

Where it is desired by a party that particular matters should be passed upon by a court of review, and the report of the referee set aside, because of their allowance, it is not too much to require that he shall, 1st. Bring the attention of the referee specifically to them; 2d. Make it manifest what disposition the referee has in fact made of them, by obtaining from him a specific report on the subject; 3d. Except specifically to the report in those particulars. 24 How. 155.

The Court of Appeals will never accept the report of a referee together with all the evidence taken before him as a substitute for a case. 20 N. Y., 519. The only manner of reviewing the final conclusions of a referee is upon a case made in the manner prescribed by the Code. 2 Keyes, 657.

One referee being absent when the case is settled, it must be sent back. 14 Abt. 48. A referee may be compelled by mandamus to settle a case and exceptions, and made to settle it correctly. 35 Barb. 105.

READE, J.

There are three modes of trial provided for in the Code.

1. Trial by jury.

2. Trial by the Court.

3. Trial by referees.

The mode of trial by referees is under review in the case before us. If the reference is by consent, then that is the mode of trial selected by the parties, and is a waiver of the right of trial by jury. So that, at no part of the proceedings, is either party entitled, as a matter of right, to have a jury.

The mode of trial by referees is found in section 246, but it is not very plain, and is, therefore, the subject of construction. And we feel at liberty-- indeed it is a duty--to give it such construction as will best subserve the convenient administration of justice, as doubtless that was the intention. We have enquired of gentlemen of the bar practicing in different circuits, and the practice is not uniform; and the views of his Honor does not precisely accord with ours. It is important that the practice should be settled, and therefore we proceed to declare what it shall be:

1. Notify the parties of the time and place of trial.

2. Examine the evidence and write it down.

3. Find the facts and write them down.

4. Declare the law upon the facts and write it down.

5. If necessary, state an account.

6. Render a decision upon the whole case in writing.

7. If either party take exceptions to any part of the proceedings, put the exceptions down in writing and pass upon them, allowing or disallowing.

8. Send up the whole proceedings to the next term of the Superior Court.

9. In the Superior Court, if there be no exceptions sent up by the referees, the Court will confirm the report, as a matter of course.

10. If the exceptions be sent up, the Judge will review the finding of the referees; and his finding upon the facts will be conclusive, and cannot be appealed from. In which case his finding, both of the facts and the law, must be sent up to...