Taylor v. Smith

• Decision Date: 26 May 1896
• Citation: 24 S.E. 792,118 N.C. 127
• Parties: TAYLOR v. SMITH et al.
• Court: North Carolina Supreme Court

24 S.E. 792

118 N.C. 127

TAYLOR v. SMITH et al.

Supreme Court of North Carolina

May 26, 1896

Appeal from superior court, Craven county; Boykin, Judge.

Action by Mary L. Taylor against Sarah Smith and others for possession of land, and for an accounting for rents and profits. From a judgment against her, plaintiff appeals. Reversed.

This action came up for hearing on report of a referee, and exceptions thereto by plaintiff and defendants. The only exception material to the opinion was the first exception of defendants, which was as follows: "The defendants B. J Smith and wife, Sarah, except to the findings in article 4 as contrary to law and evidence, in that it finds that Thompson G. Lane, Mary Lane, Daniel Lane, and Mason Lane worked on the lands described in the pleadings, and jointly paid off and discharged the indebtedness due John T. Lane, or that said payments were made from the rents, issues, and profits of the land, and also that the value of the same was the sum of one hundred and twenty-five dollars per annum during the period stated in said findings, and also that such occupation began on the 21st of October, 1849, and continued up to and including the 21st of August, 1858; and said defendants demand a trial by jury of these issues and questions of fact."

Where an exception to a referee's report reserving a jury trial fails to specifically demand it on an issue of fact raised by the pleadings and passed on by the referee in the finding excepted to, and to specify the precise issue on which testimony will be offered, the right to jury trial will be forfeited.

W. D McIver, for appellant.

M. De W. Stevenson and Shepherd & Busbee, for appellees.

AVERY J.

The first exception of the defendants B. J. Smith and wife was not sufficiently specific to entitle them to a trial by jury. Although a party may not have waived his demand for a jury trial at any previous stage of the proceeding, yet he may forfeit it by failing to indicate in his exception the particular issue, as distinguished from questions raised by the pleadings, and which he demands shall be tried by a jury. The demand must be confined to issues thus raised, and must specify the issue either by tendering a formal one, or stating as clearly what it is as if it had been formally drawn and tendered. Driller Co. v. Worth (decided at this term) 24 S.E. 517; s. c., 117 N.C. 521, 522, 23 S.E. 427. The right of other parties to a...