Smith v. Hicks

• Decision Date: 24 March 1891
• Citation: 12 S.E. 1035,108 N.C. 248
• Parties: SMITH v. HICKS.
• Court: North Carolina Supreme Court

12 S.E. 1035

108 N.C. 248

SMITH v. HICKS.

Supreme Court of North Carolina

March 24, 1891

Appeal from superior court, Cumberland county; MACRAE, Judge.

The action involved the taking of an account. At May term of the superior court of 1889 the court entered this order of reference, neither party objecting: "This case coming on to be heard, it is considered and adjudged by the court that this cause be referred to Neill W. Ray, Esq., under the Code to determine all issues of law and fact, and make report to this court." At a subsequent term the referee filed his report, whereby it appears that he found from the evidence the amount of the debt due from the plaintiff to the defendant, and the mortgage of property to secure the same etc. At the same term the plaintiff filed an exception to the report of the referee, as follows: "For that the referee finds that the note and mortgage from plaintiff to defendant were not satisfied by the sale and delivery of the still and fixtures by the defendant to W. B. Owen, whereas he ought to have found that the said note and mortgage were satisfied by said sale and delivery; to which finding the plaintiff excepts, and asks that an issue may be submitted to a jury to determine whether the sale and delivery of the still and fixtures by the defendant to W. B. Owen were in satisfaction of the note and mortgage from plaintiff to defendant." At a subsequent term the defendant moved to confirm the report, and the plaintiff insisted upon his exception, and the submission of his suggested issue to a jury. The court thereupon entered this order: "This cause being heard on motion to confirm the report, the plaintiff insists that the reference is compulsory, and the court, upon hearing the order, is of opinion that the reference is under the Code and not a consent reference. So announced, and the defendant excepted." At a subsequent term the court submitted to a jury this issue: "Were the debt and mortgage satisfied by a sale of the still to W. B. Owen?" To this defendant objected, and excepted. The jury responded to the issue "Yes." Much evidence was produced on the trial, and there were divers exceptions, both to evidence and to instructions given to the jury, and others upon the ground that the court refused to give special instructions asked for by him, but these need not be reported, except the following: "(1) That the court did not confirm the report and findings of the referee, and render judgment accordingly, in favor of the defendant (2) That the court submitted an issue to the jury after an issue agreed upon by the plaintiff and defendant had been passed upon by the referee, and decided in favor of the defendant. (3) That the court decided that the reference was not a consent reference. (4) That the issue submitted to the jury was based upon plaintiff's exception to the report of the referee, and was calculated to mislead, and, instead thereof, the issue, if any, should have been the same as passed upon by the referee." Upon the verdict of the jury the court sustained the exception to the report of the referee, and required that the same be made to conform to the verdict. The court itself did not review the findings of fact by the referee, but founded its action simply upon the verdict of the jury. There was a judgment for the plaintiff, and the defendant appealed to this court.

Though the court can submit a question of fact to the jury to aid itself in revising the findings of fact by a referee, yet such submission is erroneous where it is made because the court considers the reference compulsory instead of by consent, and that, therefore, the party is entitled to a jury trial.

H. McD. Robinson, for appellant.

R. P. Buxton, for appellee.

MERRIMON C.J., (after stating the facts as above.)

The defendant's counsel insisted on the argument here that the...