Story v. Truitt

• Decision Date: 18 May 1927
• Docket Number: 94.
• Citation: 138 S.E. 121,193 N.C. 851
• Parties: STORY v. TRUITT et al.
• Court: North Carolina Supreme Court

138 S.E. 121

193 N.C. 851

STORY v. TRUITT et al.

No. 94.

Supreme Court of North Carolina

May 18, 1927

Appeal from Superior Court, Hertford County; Calvert, Judge.

Action by P. D. Story against J. W. Truitt, trading as J. W. Truitt & Co., and another. From the judgment, plaintiff appeals. Affirmed.

Plaintiff's failure to except to compulsory reference waived jury trial.

R. C. Bridger, of Winton, for appellant.

John E. Vann and W. D. Boone, both of Winton, for appellee J. W. Truitt.

PER CURIAM.

At April term, 1923, a compulsory reference in the above-entitled action was ordered by the court below, and L. J. Lawrence, Esq., was appointed referee. The record, which imports verity, shows that no exception was taken by the plaintiff to the reference. The right to a jury trial was waived. Driller Co. v. Worth, 117 N.C. 515, 23 S.E. 427; Baker v. Edwards, 176 N.C. 229, 97 S.E. 16; Jenkins v. Parker, 192 N.C. 188, 134 S.E. 419; Burroughs v. Umstead, 194 N.C. ___, 137 S.E. 581.

"It is the accepted position with us that the findings of fact by a referee, concurred in by the judge, are conclusive when there is competent evidence to sustain them." Com'rs v. Abee Bros., 175 N.C. 701, 96 S.E. 31; Hardy v. Thornton, 192 N.C. 296, 134 S.E. 641; Dilling Cotton Mills v. Lowell Cotton Yarn Co., 192 N.C. 713, 135 S.E. 770.

Upon a careful perusal of the record, there was competent evidence to sustain the findings of fact by the referee. The court below in its judgment set forth that exceptions of plaintiff were overruled, and "hereby confirms and adopts the findings of fact and conclusions of law set forth in said report of the referee as fully and in the same manner as if herein recited."

For the reasons given, the judgment of the court below is affirmed.