McNeill v. Hodges

• Decision Date: 07 April 1890
• Citation: 11 S.E. 265,105 N.C. 52
• Parties: McNELL et al. v. HODGES.
• Court: North Carolina Supreme Court

11 S.E. 265

105 N.C. 52

McNELL et al. v. HODGES.

Supreme Court of North Carolina

April 7, 1890

Syllabus by the Court.

1. Exceptions to a referee's report may be filed, as a matter of right, at the term to which the report is made. The filing of exceptions after that term is in the discretion of the judge, and from the exercise of such discretion no appeal lies.

2. The clerk has jurisdiction of a proceeding by a ward against his guardian for an account.

3. A judgment can be rendered in favor of one co-defendant against another.

4. A party can recover judgment for any relief to which the facts alleged and proven entitle him, whether demanded in the payer for judgment or not.

Appeal from judgment of GILMER, J., at May term, 1889, of Cumberland superior court.

The following is the statement of the case on appeal: This was a special proceeding begun before the clerk of the superior court of Cumberland county more than 10 years since, calling the defendant Hodges, guardian, to an account and settlement with his wards, the plaintiffs above named. The guardian accounts of the defendant have been stated four times, and opportunity given each time for the parties to except to the same. The cause coming on to be heard before GILMER, J., at May term, 1889, the plaintiffs moved to strike from the file certain exceptions, which appear to have been filed on April 23, 1889, during the interval between terms, and to confirm the report of referee. It appeared that the report of the referee had been made to January term, 1889, and the defendant's counsel notified that the same had been made before the beginning of January term. His honor, after hearing arguments on both sides, and after inspection of the exceptions of April 23d, and examination of the record, in the exercise of his discretion, allowed the motion of plaintiffs; and the defendant excepted. The defendant then moved for leave to file the exceptions of April 23d, also of May term, 1889, which motion his honor, in the exercise of his discretion, refused; and the defendant excepted. There was a judgment rendered confirming the report, and in favor of the several plaintiffs for the several amounts due them. Appeal by defendant.

Exceptions to a referee's report may be filed, as a matter of right at the term to which the report is made. The filing of exceptions after that term is in the discretion of the judge and from the exercise of such discretion no appeal lies.

R. H Battle and S. F. Mordecai, for plaintiffs.

N. W Ray (by brief) and W. E. Murchison, for defendant.

CLARK J., (after stating the facts as above.)

"It is a well-settled rule," says the court in State v. Peebles, 67 N.C. 97, "that exceptions to such reports must be made, as a matter of right, at the court to which the report is made." After that term, if judgment be not entered thereat, it is a matter of discretion with the court to allow exceptions to be filed; and from the exercise of such discretion no appeal lies. This ruling is recognized and sustained in University v. Lassiter, 83 N.C. 38; Commissioners v. Magnin, 85 N.C. 114; Long v. Logan, 86 N.C. 535.

The January term of Cumberland, to which the referee's report was returned, was a regular term to which process was returnable, and differed from other terms only in that civil causes requiring a jury could not be tried thereat except by consent of parties. Acts 1887, c. 37. The report was properly filed at said term. It seems, from the statement of the case that the defendant's counsel knew that the report had been filed before the January term began. They should have filed their exceptions at that term. The case had been a long time pending. It was begun in 1878, and was in this court as far back as 83 N.C. 504, (1880.) The attempted...