Roughton v. Sawyer

Decision Date19 February 1907
Citation56 S.E. 480,144 N.C. 766
PartiesROUGHTON et al. v. SAWYER et al.
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Tyrrell County; Neal, Judge.

Action by A. W. Roughton and others against Spencer Sawyer and others. From the judgment, plaintiff and certain defendants appeal. Affirmed.

Defendants' right to trial by jury upon the issues of fact arising upon their exceptions to the referee's report was waived by their failure to assert such right definitely and specifically in each exception, and to point out in each exception the specific fact excepted to upon which they elected to demand a jury trial.

Aydlett & Ehringhaus and C. E. Thompson, for appellant.

Ward & Grimes and Shepherd & Shepherd, for appellees.

PER CURIAM.

This action is brought to recover certain purchase money from defendant lumber company and by it deposited in defendant bank. The cause was referred to a referee by the court. Plaintiffs did not except to this order, and as to them it is a consent reference. They are not now entitled to a jury trial upon the issues arising upon the exceptions to referee's report.

The defendants T. C. Morris, J. C. Morris, and C. T. Sample excepted to the order of reference, but they have waived the right to a trial by jury upon the issues of fact arising upon their exceptions filed to referee's report by failing to assert such right definitely and specifically in each exception, and pointing out in each exception the specific fact excepted to upon which they elect to demand a jury trial, as is required in Driller Co. v. Worth, 117 N.C. 520, 23 S.E. 427.

The judgment of the superior court is affirmed.

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