State Ex Rel. Wilson v. Featherstone

• Decision Date: 27 April 1897
• Citation: 27 S.E. 124,120 N.C. 446
• Court: North Carolina Supreme Court
• Parties: STATE ex rel. WILSON v. FEATHERSTONE et al.

27 S.E. 124

120 N.C. 446

STATE ex rel. WILSON

v.FEATHERSTONE et al.

Supreme Court of North Carolina.

April 27, 1897.

Right to Jury Trial—How Reserved—Exception to Referee's Report.

Where the contention was as to the ownership of moneys in the hands of R. at decedent's death, and, on compulsory reference, the referee found adversely to defendant, who had properly reserved his right to a trial by jury at every previous stage of the proceedings, an exception that the referee should have found that decedent merely deposited said money with R. for safe-keeping, as such deposits are made in a bank, and that R. held the money as such depositary, sufficiently showed what the issue for the jury would be, and entitled defendant to the jury trial demanded by him on said exception.

Appeal from superior court, Buncombe county, Bryan, Judge.

Action by the state, on the relation of Samantha C. Wilson, against Clara M. Featherstone and others, on an administrator's bond. From an order granting defendants a jury trial of the issues raised by the pleadings and the exceptions to the referee's report, plaintiff appeals. Affirmed.

Merrimon & Merrimon, for appellant.

Jones & Barnard and T. H. Cobb, for appellee.

FAIRCLOTH, C. J. In all controversies respecting property the parties are entitled to a trial by jury. Const, art. 1, § 19. In all issues of fact joined in any court the parties may waive a jury trial and submit the findings of fact to the judge. Const, art. 4, § 13. All such issues may be referred for trial by consent of parties (Code, §§ 420, 423), and the court may order a compulsory reference on its own motion (section 421). In the case before us a compulsory reference was ordered, and on the trial before the referee the defendants repeated their demand for a jury trial. The referee tried the case, and reported his findings of fact and law, and the defendants excepted to the findings of fact, and renewed their exception to the reference, and demanded a jury trial. At the conclusion of each exception to certain findings of fact, the defendants reiterated their demand for a jury trial upon that exception. At the hearing his honor ordered a trial by jury, and continued the case for that purpose. The plaintiff excepted, and appealed. Every litigant has this constitutional right of trial by jury, unless he voluntarily waives the privilege. Green v. Castlebury, 70 N. C. 20; Bernheim v. Waring, 79 N. C. 56. The object of a reference is to facilitate the trial, and the purpose of the exceptions is to point out the terms of the inquiry as a basis for an issue to be submitted to the court or the jury, as the case may be. The usual pleadings set forth the facts, according to the contention of the several parties, out of which the issues arise. These issues shall be made up by the attorneys or the judge presiding. Code, § 395. And so...