Robinson v. Johnson

• Decision Date: 03 October 1917
• Docket Number: (No. 222.)
• Court: North Carolina Supreme Court
• Parties: ROBINSON et al. v. JOHNSON.

93 S.E. 743

(174 N.C. 232)

ROBINSON et al.

v.JOHNSON.

(No. 222.)

Supreme Court of North Carolina.

Oct. 3, 1917.

Appeal from Superior Court, Sampson County; Devin, Judge.

Action by John B. Robinson and another against W. J. Johnson. From the judgment on defendant's exceptions to the report of the referee, plaintiffs appeal. Affirmed.

The action was brought to redeem two mortgages made by the plaintiffs John B. Robinson and Fletcher B. Robinson to the defendant, W. J. Johnson, the first mortgage dated April 20, 1907, securing a debt of $1,227.95, due by four several notes of equal amounts, and the second for $1,491.39, both mortgages describing 215 acres of land, and the second mortgage an additional tract of 200 acres. Defendant sold the 215 acres, the sawmill and fixtures, under the second mortgage, and bought them for himself at his own sale, but through another party, who acted for him. Plaintiffs alleged that the defendant took possession of said lands and cut cross-ties and timber therefrom worth $1,060, and committed waste thereon, so that the lands by defendant's bad husbandry and the damage done to the land in other ways was permanently injured and depreciated in value to plaintiffs' damage $1,000, and that the rental value of the land is $200 per annum. They further allege that upon a fair accounting between the parties it will be found that the debts secured by the mortgages not only have been fully paid, but the defendant is indebted to them. They ask for an injunction against a sale under the second mortgage of the 200-acre tract of land, which has been advertised for sale by the defendant, for an accounting, and the cancellation of the mortgages, which have been satisfied in the manner above stated. The case was referred by the court without the consent of the plaintiffs, who objected to the reference and demanded a jury trial. The referee reported that a balance of $163.98, subject to a credit of a less amount, was due to the plaintiffs. No exceptions were filed by the plaintiffs, nor did they demand a jury trial. Defendant filed exceptions, but plaintiffs did not tender any issue upon them. The judge passed upon the defendant's exceptions, and found that the plaintiffs owed the defendant $452.01, with interest from January 1, 1915, and the plaintiff F. B. Robinson owed the defendant $60, with interest from January 1, 1912, and judgment was entered accordingly. Plaintiffs reserved their exceptions, and appealed.

Grady & Graham and Kerr & Herring, all of Clinton, for appellants.

Henry E. Faison, of Clinton, John G. Shaw, of Fayetteville, and I. C. Wright, of Wilmington, for appellee.

WALKER, J. (after stating the facts as above). [1] Plaintiffs have clearly waived their constitutional right to the trial of the issues in the case by a jury, as they failed to except to the referee's report, and did not tender any issues at all, not even on the defendant's exceptions. This was really tantamount to an agreement on their part that the judge should pass upon the defendant's exceptions without a jury. Numerous cases support the view that there was a clear waiver of trial by jury. It was held in Driller Co. v. Worth, 117 N. C. 515, 23 S. E. 427:

"1. A party cannot be deprived of the right to a trial by jury except by his own consent.

"2. The right to a jury trial may be waived by failure of a party to appear, or by the written agreement of himself or his attorney, or by oral consent entered on the minutes of the court, or by submission to a reference.

"3. Where an action is once referred [by agreement] the order of reference cannot be annulled except by the consent of all parties.

"4. Failure to object to an order of reference at the time it is made is a waiver of the right to a trial by jury.

"5. Although a party has his objection to a compulsory reference entered in apt time, he may waive his right to a trial by jury by failing to assert it definitely and specifically in each exception to the referee's report.

"6. Where there was a compulsory reference objected to by defendants, and the referee filed fourteen findings of fact, some of which related to questions not in issue under the pleadings, and defendants filed exceptions...