Simpson v. Scronce
| Decision Date | 11 May 1910 |
| Citation | 152 N.C. 594,67 S.E. 1060 |
| Court | North Carolina Supreme Court |
| Parties | SIMPSON v. SCRONCE et al. |
1. Jury (§ 28*)—Right to Jury Trial—Referee's Report—Exceptions.
Where an action for conversion was referred at plaintiffs instance to hear the evidence, and pass on the issues of fact and law, and plaintiff excepted to the referee's report, but tendered no proper issue for the trial of an issue of fact by a jury, he was not entitled to a jury trial on such exceptions.
[Ed. Note.—For other cases, see Jury, Dec. Dig. § 28.*]
2. Jury (§ 28*)—Jury Trial—Waiver.
Where a reference was ordered at plaintiff's request in an action at law, he thereby waived the right to a jury trial, and was not entitled to a trial by jury on exceptions to the referee's report.
[Ed. Note.—For other cases, see Jury, Dec. Dig. § 28.*]
Appeal from Superior Court, Catawba County; Councill, Judge.
Action by G. M. Simpson against J. C. Scronce and others. Judgment for defendants, and plaintiff appeals. Affirmed.
W. A. Self and Witherspoon & Witherspoon, for appellant.
M. H. Yount and W. C. Feimster, for appellees.
This action was brought to recover damages for the conversion of cotton. At the request of the plaintiff, the case was referred by the court to C. M. McCorkle to hear the evidence and pass upon the issues of fact and questions of law raised by the pleadings. The referee made his report to the court, and the plaintiff filed several exceptions thereto. It further appears that, "upon said exceptions, the plaintiff demanded a trial of the same by a jury." He did not tender any issue as to any controverted fact which he desired to be submitted to a jury, but simply asked, in a general way, for a jury trial upon the exceptions filed by him. Some of the exceptions involved questions of law, and, of course, they could not be tried by a jury, and if, upon any exceptions which involved an issue of fact, the plaintiff wished to have a jury trial, he should have tendered the proper issue. The practice in such cases has been well settled by adjudications of this court. Driller Company v. Worth, 117 N. C. 515, 23 S. E. 427; Ogden v. Land Company, 146 N. C. 443, 59 S. E. 1027. In the last case the matter is fully discussed, with a citation of authorities. We have not overlooked the fact that the order of reference was made, not only with the consent of the plaintiff, but at his request. This was an election on his part to have the case tried by a referee. He could have insisted upon a...
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...Long, 173 N.C. 235, 91 S.E. 837; Alley v. Rogers, 170 N.C. 538, 87 S.E. 326; Keerl v. Hayes, 166 N.C. 553, 82 S.E. 861; Simpson v. Scronce, 152 N.C. 594, 67 S.E. 1060; Taylor v. Smith, 118 N.C. 127, 24 S.E. 792. 4. He must set forth in his exceptions to the referee's report a definite deman......
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...153 N.C. 373, 69 S.E. 261; Robinson v. Johnson, 174 N.C. 232, 93 S.E. 743; and Loan Co. v. Yokley, 174 N.C. 573, 94 S.E. 102. In Simpson v. Scronce, supra, we "It further appears that 'upon said exceptions the plaintiff demanded a trial of the same by a jury.' He did not tender any issue as......
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Robinson v. Johnson
...was taken. These cases have frequently been approved and affirmed: Ogden v. Land Co., 146 N. C. 443, 59 S. E. 1027; Simpson v. Scronce, 152 N. C. 594, 67 S. E. 1060; Mirror Co. v. Casualty Co., 153 N. C. 373, 69 S. E. 261, where the cases are collected; and the recent case of Alley v. Roger......
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Burroughs v. Umstead
...been filed at the proper time, yet this failure to tender issues on the controverted facts was a waiver of the right to jury trial. Simpson v. Scronce, supra. judgment below is affirmed. BROGDEN, J., did not sit, and took no part in the decision of this case. ...