Kerb Et Ux v. Hicks

• Decision Date: 15 October 1903
• Citation: 45 S.E. 529,133 N.C. 175
• Court: North Carolina Supreme Court
• Parties: KERB et ux. v. HICKS.

45 S.E. 529

133 N.C. 175

KERB et ux.

v.HICKS.

Supreme Court of North Carolina.

Oct. 15, 1903.

REHEARING — GROUNDS — CERTIFICATES OF COUNSEL—COURT RULES—REFERENCE—SUBMISSION OF ISSUES—OBJECTIONS—REVIEW.

1. Sup. Ct. Rule 53 (39 S. E. x), requiring that a certificate of counsel to a petition for rehearing shall state in what respect the former opinion is erroneous, is mandatory, and hence, where a particular ground alleged is not so certified, it cannot be reviewed.

2. Where plaintiff excepted in apt time to a compulsory reference, and all matters in dispute were in fact tried before the jury, an objection taken for the first time on appeal to the technical form of asking submission of issues arising "on the report" instead of "on the pleadings" is unavailable.

On petition for rehearing. Denied. For former opinion, see 42 S. E. 532.

E. K. Bryan and Stevens, Beasley & Weeks, for petitioner.

Shepherd & Shepherd, F. R. Cooper, and J. L. Stewart, for defendants.

CLARK, C. J. This is a petition to rehear this case, reported 131 N. C. 90, 42 S. E. 532. The grounds assigned in the petition are:

1. "That the court overlooked the fact that the order of reference was compulsory, and that the defendant excepted to the order of reference." Neither ground is valid as a statement of fact. The opinion was largely based upon the fact that the order of reference was compulsory, and the defendant, according to the record, did not except to such order. The defendant merely excepted to the order of Judge Brown at a subsequent term amending the record, to show that the plaintiff had excepted to the reference at the time it was made.

2. "That the court was in error in holding that the issues submitted covered the plea in bar." The defendant's fourth assignment of error was that Allen, J., refused to submit the third and fourth issues tendered by defendant. On this we are satisfied with what is said on that point in our former opinion. "These matters could be and were presented to the jury upon the issues settled by the court, and the refusal to submit the issues was not error." Cecil v. Henderson, 121 N. C. 244, 28 S. E. 481; Patterson v. Mills, 121 N. C. 258, 28 S. E. 368; Kendrick v. Ins. Co., 124 N. C. 315, 32 S. E. 728, 70 Am. St. Rep. 592. Besides, the issues were settled by the court without exception from the defendant. The truth of the third issue tendered by the defendant—that defendant had sent plaintiff the accounts—was admitted by plaintiff. The fourth issue tendered —that "plaintiff had acquiesced therein"— was the alleged plea in bar, and that matter was presented to the jury upon the issues submitted, and was passed upon by them. This last was the only point indorsed by the two other counsel, whose certificate of error is a prerequisite to the submission of a petition to rehear, and therefore we should stop here, and dismiss the petition. The defendant, however, earnestly pressed the further exception, not certified as error by any counsel, that "the court was inadvertent to the fact that the cause was tried by Allen, J., upon issues arising upon exceptions to the referee's report." In fact, the cause was tried upon issues arising on the pleadings and exceptions, but, if this last ground were properly before us, we could not sustain the point for other reasons. The plaintiff was, by the Constitution, entitled to a jury trial. When the cause was compulsorily referred, he reserved his rights...