Keerl v. Hays

• Decision Date: 23 September 1914
• Docket Number: (No. 516.)
• Citation: 166 N.C. 553,82 S.E. 861
• Parties: KEERL et al. v. HAYS et al.
• Court: North Carolina Supreme Court

82 S.E. 861

(166 N.C. 553)

KEERL et al.

v.HAYS et al.

(No. 516.)

Supreme Court of North Carolina.

Sept. 23, 1914.

Appeal from Superior Court, Henderson County; Cline, Judge.

Action by Susan B. H. Keerl and others against J. F. Hays and another. From an order granting defendants a jury trial on certain issues, plaintiff excepted and appeals. Affirmed.

Smathers & Ward, of Asheville, and D. L. English, of Brevard, for appellants.

J. H. Merrimon, of Asheville, for appellees.

BROWN, J. The only question presented by this appeal is: Did the trial court err in ordering that the defendants be allowed a trial by jury of the issues raised by the defendants' exceptions to the referee's report and the pleadings? This cause was referred to Hon. Thos. B. Womack by an order of Neal, Judge, which contains the following paragraph:

"It was further agreed by all the parties that the order might be signed by the judge out of the district and not in term time, it being understood that they do not agree to the reference, and all the parties except to the order of ref-erence, waiving only the facts that the order is signed not in term time and outside of the district."

During the progress of the reference, and before the report had been filed, Referee Womack died, and an order was made substituting S. J. Erwin "as referee in this action in the place and stead of the said Thomas B. Womack, and he is hereby authorized and directed to carry out and execute the order appointing the said Thomas B. Womack as referee in this action." The reference was completed by Mr. Erwin, who filed his report on the 10th of September, 1913. Exceptions were filed by the plaintiffs and the defendants, whereupon the court made the following order:

"The plaintiffs in due time filed one exception to the report of the referee without asking a jury trial thereon. The defendants filed a number of exceptions, asking a jury trial thereon, as will appear by reference thereto. The plaintiffs at the April term, 1914, moved for a judgment upon the report of the referee and according thereto, except as to their one exception, which they ask the court to hear and determine. The court upon inspection of the original compulsory order of reference to Judge Womack, now deceased, and also of the paper denominated a consent substitution of the name of S. J. Erwin as referee in the place of Judge Womack, was of the opinion, and so held, that the latter paper did not operate to estop the defendants from asking and demanding a jury trial upon such issues as were properly raised by exception taken in due time under the statute, and issues tendered as provided by law; and it appearing to the court that the defendants had filed their exceptions and tendered suitable issues in due time, it is now ordered by the court that the case stand for trial before a jury upon such exceptions and such issues as will be found to be properly raised by the defendants' exceptions, and in order that the whole matter might be heard at the same time continued the hearing of the plaintiffs' exception, and any exceptions of the defendants as are raised for the determination of the court without a trial by a jury, if any, and the plaintiffs excepted to the ruling of the court to the effect that the defendants were entitled to a trial by a jury. By consent both plaintiffs and defendants were given 20 days after the adjournment of this term of court in which to file any additional exceptions to the report of the referee, if they so desired."

It must be admitted that the original order constitutes a compulsory reference. If so, the defendants cannot be said to have waived their constitutional right of trial by jury. Hockoday v. Lawrence, 156 N. C. 321, 72 S. E. 387. The matter involved and at issue by the pleadings is one in which compulsory reference is proper, because it involves the conflict question of boundary. Revisal, § 519, subsec. 3. Such...