Kerr v. Hicks

• Decision Date: 30 September 1902
• Citation: 42 S.E. 532,131 N.C. 90
• Parties: KERR et ux. v. HICKS.
• Court: North Carolina Supreme Court

42 S.E. 532

131 N.C. 90

KERR et ux. v. HICKS.

Supreme Court of North Carolina

September 30, 1902

On rehearing. Former opinion reversed, and judgment below affirmed.

For former report, see 39 S.E. 797.

Furches C.J., dissenting.

The court, in its discretion, may at any time before judgment permit the filing of exceptions to a report of the referee. Judgment (1901) 39 S.E. 797, 129 N.C. 141, reversed on rehearing.

Shepherd & Shepherd and J. L. Stewart, for petitioners.

Stevens Beasley & Weeks, for defendant.

CLARK J.

This was an action begun in 1891 by husband and wife, mortgagors against the mortgagee, alleging overcharges, usury, and overpayment, asking for a statement of the account, judgment for balance due plaintiffs, and a cancellation of the mortgage, and for a restraining order against the sale of the mortgaged property pending the action. The defendant averred in his answer, among other things, that the plaintiffs were estopped by accounts rendered, which they had accepted without objection. At the return term time was given to file complaint and answer, and at the same term a reference was ordered, no pleadings having been filed. At February term 1894, the plaintiffs having demanded a trial by jury of the issues of fact raised by the pleadings on the ground that the reference had been compulsory, Judge Brown, after hearing affidavits on both sides, found as a fact that the reference was compulsory, and not by consent, and that "the plaintiffs excepted to any order purporting to be a consent reference," and directed that the record and order of reference be amended nunc pro tunc to show these facts, and the parties were ordered to prepare such issues of fact as each claimed arose upon the pleadings before next term of the court. The defendant excepted to this order, but the authority and duty of the court to amend the record to speak the truth are beyond question, and, there being conflicting evidence, his finding of fact is conclusive. See cases cited in Clark's Code (3d Ed.) pp. 305, 306. At October term, 1897, the issues were submitted to the jury, and found in favor of the plaintiffs, and thereupon the cause was recommitted to the referee, with directions to reform and revise his account to conform to the verdict of the jury. An appeal was taken by the defendant from the order recommitting the report, but the appeal was dismissed because premature. Kerr v. Hicks, 122 N.C. 409, 29 S.E. 370. At February term, 1901, upon exceptions filed to the amended report, Judge Hoke rendered the judgment set out in the record. The defendant filed 14 exceptions thereto, which repeated and included all the exceptions taken by him during the progress of the cause, including, of course, those set out in the appeal which was dismissed as premature. When this last appeal was heard at August term, 1901 (Kerr v. Hicks, 129 N.C. 141, 39 S.E. 797), the court held that, the reference in 1891 having been compulsory, the plaintiffs were entitled to appeal, because there was a plea in bar, and, not having appealed, they had no right thereafter to insist on their right to a jury trial. We are now called on by this rehearing to reconsider that ruling. This point was raised by the court ex mero motu upon examination of the record, and we did not have the benefit of argument by counsel. Indeed, one of the defendant's exceptions (2) on appeal is that this order of reference was invalid, because made before any pleadings were in. We were inadvertent to this fact that when the reference was ordered and exception noted (as the judge finds was done) there were no pleadings, and consequently no plea in bar. The order of reference on its face recites that the plaintiffs should have 15 days after the adjournment of the court to file complaint, and the defendant 15 days thereafter to file answer. The exception, therefore, to the order of reference then entered, was all that was required, and an appeal, if prosecuted, would have been dismissed as premature. The plea of an estoppel in pais is rather a defense than a plea in bar, which must be disposed of before a trial on the issue. But, if it were a plea in bar, it was not on file when the order of reference was made, and the plaintiffs could not appeal for failure to dispose of it. An appeal from an interlocutory order is usually ground for an exception, and not an appeal. When an appeal is permissible from such order, it is never compulsory, and the party entitled thereto can, if he prefers, note his exception, and have the point reviewed on appeal from the final hearing, because (as in this case) he may be satisfied with the future action of the court, and not wish to appeal. Why should the plaintiffs have appealed here, when their exception to the reference was in, and they knew this preserved their right to a jury trial, and they would only wish to appeal when that was denied them? Besides, the alleged estoppel could not be a plea in bar in this action to surcharge an account for usury. If a plea in bar, the defendant waived it by not excepting to the order of reference. Grant v. Hughes, 96 N.C. 177, 2 S.E. 339; Wilson v. Pearson, 102 N.C. 290, 9 S.E. 707. The plaintiffs had nothing to object to, except that the reference was compulsory, and that was matter for exception, and not for appeal. When the report came in, the plaintiffs did insist that, the reference having been compulsory, and an exception duly noted, they were entitled to a trial by jury; and the judge so held, and the defendant did not appeal. Had he done so, his appeal must have been dismissed as premature. On reconsideration, therefore, we think that there was inadvertence in our opinion at fall term, 1901, and we reinstate the case as it stood at that hearing.

This brings us to the 14 exceptions brought up by the defendant in that appeal, which are:

1. That Judge ...