Ogden v. Apalachian Land & Lumber Co

• Decision Date: 18 December 1907
• Citation: 146 N.C. 443,59 S.E. 1027
• Court: North Carolina Supreme Court
• Parties: OGDEN et al. v. APALACHIAN LAND & LUMBER CO.

59 S.E. 1027

146 N.C. 443

OGDEN et al.

v.APALACHIAN LAND & LUMBER CO.

Supreme Court of North Carolina.

Dec. 18, 1907.

1. Jury — Right to Jury Trial — Denial — Exception to—Sufficiency.

An exception to an order of reference in the words, "Defendants' counsel except to the above order of reference, " while general, was sufficient to save the right of defendants to a trial by jury.

2. Same—Waiver.

Though defendants reserved their right to a jury trial by exception to an order of reference, they waived such right by failure to properly assert it in their exception to the referee's report.

3. Same—Exceptions to Report op Referee —Sufficiency.

A mere statement, in reference to defendants' exception to a referee's report, that, "as to the matters and issues embraced in said finding, they and each of them demand a jury trial, " was insufficient to save their right to a jury trial, where it did not specify the particular facts controverted upon which defendants claimed an issue should be submitted to the jury, nor tender an issue upon each finding of fact against them to which they excepted.

Appeal from Superior Court, Cherokee County; O. H. Allen, Judge.

Action by J. D. Ogden and others against the Apalachian Land & Lumber Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Dillard & Bell, for appellant.

Merrimon & Merrimon, E. B. Norvell, and Axley & Axley, for appellees.

WALKER, J. This appeal embraces several creditors' bills filed for the purpose of winding up the affairs of the defendant company. The actions were consolidated by order of the court, and then referred to Mr. Dewees, clerk of the court, to find and state the facts and his conclusions of law. We have read that report with great care, and, in the light of the evidence upon which the findings of fact and the conclusions of law are based, it has impressed us most favorably as having been prepared after a thorough and painstaking investigation of all the evidence, and as being the result of an intelligent and impartial consideration of the case. Its conciseness, and yet its comprehensiveness, are its prominent merits. The defendants, when the reference was ordered by Judge Justice, entered a general exception to the same, in the following words: "Defendants' counsel except to the above order of reference." We are of the opinion that this exception, while very general in its terms, is sufficient to save the right of the defendants to a trial by jury. What could an objection to an order of reference mean, unless it was a challenge of the power of the court to take away from the objector his right to a trial by jury? In Driller Co. v. Worth, 117 N. G. 515, at page 520, 23 S. E. 427, the leading case upon this subject, the court says: "Where a party omits at an opportune moment to declare his purpose to claim his constitutional protection, and thereby so misleads his adversary as that to insist upon it at a later stage of the proceeding would place the opposing party at a disadvantage by delaying the adjudication of his rights, it is competent for the courts to so far restrict and regulate the right as to prevent needless or wanton infringement upon the rights of others. Therefore, though it is error to order a compulsory reference until a trial is first had, and a finding adverse to the pleader returned, upon an issue raised by a plea in bar, the failure to object when the order is made is deemed a waiver of the right. Silence, under such circumstances, is inconsistent with the purpose to insist upon the settlement of an issue decisive of the whole controversy by any other tribunal than the referee, and to allow a party to do so would be to give him the chance of prevailing by a second mode of trial after his adversary had been induced by his silence to incur costs, often very heavy, in meeting him in anotherforum, to which he had not objected. Clements v. Rogers, 95 N. C. 248; Grant v. Hughes, 96 N. C. 177, 2 S. E. 339." And again, and for the purpose of showing how...