Mcdaniel v. Scurlock

• Decision Date: 20 November 1894
• Citation: 20 S.E. 451,115 N.C. 295
• Court: North Carolina Supreme Court
• Parties: McDANIEL. v. SCURLOCK.

20 S.E. 451

115 N.C. 295

McDANIEL.

v.SCURLOCK.

Supreme Court of North Carolina.

Nov. 20, 1894.

Case on Appeal—Reference—Jury Trial.

1. Code, 5 550, requiring a copy of appellant's case on appeal to be left with appellee, is complied with by a service of the original instead of a copy.

2. Where appellee's exceptions to appellant's case on appeal were served within the statutory five days, appellant cannot complain that his statement was not returned within five days thereafter, unless his rights were prejudiced thereby.

8. Where appellant failed to apply to the court to settle the case, appellant's statement, as amended by appellee's exceptions, may be taken as the case on appeal.

4. Where reference by consent was vacated without objection, and at the next term the case was again referred, against the objection of both parties, such reference is compulsory, entitling plaintiff to a jury trial.

Appeal from superior court, Cumberland county; Bryan, Judge.

Action by Tama McDaniel against G. C. Scurlock for an accounting for funds intrusted to defendant as plaintiff's guardian. The case was heard on exceptions to the report of referees. From a judgment for defendant, plaintiff appeals. Reversed.

Saml. H. MacRae, for appellant.

Thos. H. Sutton, for appellee.

CLARK, J. The appellee cannot complain that the appellant's original "statement of case on appeal" was served on him instead of a copy. The word "copy, " in section 550 of the Code, bears no such restricted meaning. It simply means that a statement of appellant's case on appeal must be left with the appellee, so that he may scrutinize it at his leisure, and make out his exceptions thereto within the five days allowed. Nor can the appellant complain that such statement was not returned to him in five days, when the appellee's exceptions were In fact served within the statutory five days, unless it appear that the appellant was injured in his rights thereby. The essential points are the legal service in ten days of plaintiff's statement on the appellee, and legal service in five days of appellee's exceptions or his counter case (Home Smith, 105 N. C. 322, 11 S. E. 373) on appellant, and the latter's application to the judge to settle the case. This diligence is due by each to the opposite party.

The other matters above insisted on do not affect the rights of parties, and would lead us into the realms of "red tape, " whither we have no inclination to enter. His honor has found the facts on the controverted question of service of case and counter case, as it was his duty to do. Cummings v. Hoffman, 113 N. C. 267, 18 S. E. 170. Upon such findings it appears that the appellant did not apply to the judge to settle the case, and we might take his "statement, " as amended by the appellee's exceptions, as the case on appeal. Russell v. Davis, 99 N. C. 115, 5 S. E. 895; Owens v. Phelps, 92 N. C. 231. Or, if this would be complicated, the court would remand, that the case might be properly settled by the judge. Arrlngton v. Arrington, 114 N. C. 115, 19 S. E. 278; Hinton v. Green-leaf (at this term) 20 S. E. 162. But an examination of the record proper, which would control the "case on appeal, " shows error which entitles the appellant to a new trial. It is true that a consent to a reference once given cannot be withdrawn. Armfield v. Brown, 70 N. C. 27; Perry v. Tupper, 77 N. C. 413; Flemmings v. Roberts, Id. 415. Here the plaintiff asked originally for a reference and it was made without his excepting thereto. But it appears from the record that at a subsequent term, —July, 1892, —the refereesfailing to agree, the order of reference was stricken out by the court. Neither party excepted to this. At November term, 1892, ...