Harris v. Shaffer

• Decision Date: 28 February 1885
• Citation: 92 N.C. 30
• Court: North Carolina Supreme Court
• Parties: C. L. HARRIS v. A. W. SHAFFER.

92 N.C. 30

C. L. HARRIS

v.A. W. SHAFFER.

Supreme Court of North Carolina.

February Term, 1885.

Appeal by plaintiff from an order made at August Term, 1884, of WAKE Superior Court, by Gudger, Judge, refusing a trial by jury of exceptions to the report of a referee.

The facts are stated in the opinion.

Messrs. Batchelor & Devereux, for the plaintiff .

Messrs. Gatling & Whitaker, for the defendant .

MERRIMON, J.

The pleadings raised issues of fact and law, and at August Term, 1878, the following order of reference was entered:

“Upon motion of plaintiff, it is ordered that this action be referred to A. W. Haywood, Esq., to hear and decide the issues raised by the pleadings herein, the referee to pass upon the fact and the law, and report to the Court the evidence and his findings both of law and fact, and the findings, to be subject to review by the Court. Either party may demand a jury trial, upon exceptions to the referee's report.”

The question presented by the plaintiff's exception is whether or not he waived his right to a trial by jury, as reserved in that order.

It appears that the referee made his report at August Term, 1883, and leave was granted to the parties to file exceptions thereto. At February Term, 1884, the plaintiff filed sundry exceptions, but he did not then demand a jury trial, nor did he at the June Term of that year. At the August Term, the case was placed on the motion docket, and also upon the trial calendar for trial on a day designated in the term. On the call of the motion docket, the plaintiff demanded a trial by jury, not having done so at any previous time, or given any notice of his purpose to do so at that or any other term.

The order of reference was made by consent of the parties. It was entered on the motion of the plaintiff, and the defendant being present, and not objecting, the presumption was that he consented to it, and it must be so taken. The reference is singular in that, it provided for a trial by the referee, and in the event either party for any cause should not be satisfied with such trial, he might except and have a second trial by jury. Can this be done? Where the parties to an action agree upon one method of trial allowed by law, can they agree that if either party shall be dissatisfied with a trial thus had, a new trial shall be had at the instance of either party, by a different method? The law does not provide that parties may, as of right, have a trial of the issues of fact by two distinct methods in the same action. When parties adopt a method of trial, they ought to be bound and concluded by it according to the course of procedure applicable to it.

If it be said this order was made with the sanction of the Court, then, the question arises, can the Court direct or assent to the...