Wilson v. Allsbrook

• Decision Date: 05 April 1933
• Docket Number: 293.
• Citation: 168 S.E. 676,204 N.C. 479
• Parties: WILSON et al. v. ALLSBROOK et al.
• Court: North Carolina Supreme Court

168 S.E. 676

204 N.C. 479

WILSON et al. v. ALLSBROOK et al.

No. 293.

Supreme Court of North Carolina

April 5, 1933

Appeal from Superior Court, New Hanover County; Sinclair, Judge.

Action by E. McL. Wilson and others against O. O. Allsbrook, trustee, and others. From an order denying a motion to vacate judgment confirming referee's report, the plaintiffs appeal.

Affirmed.

Where case was sent back to referee for additional findings and supplemental report, plaintiffs held entitled to notice and hearing before referee with right of appeal.

Civil action heard on motion to vacate judgment confirming referee's report.

Motion denied, and plaintiffs appeal.

Isaac C. Wright and R. G. Grady, both of Wilmington, for appellants.

Chas. B. Newcombe and John A. Stevens, both of Wilmington, for appellees.

STACY, Chief Justice.

This is the same case that was before us at the last term, 203 N.C. 498, 166 S.E. 313, opinion filed November 9, 1932. Error having been found in the judgment of the superior court, the cause was remanded, with direction that the order of confirmation be vacated and further proceedings had according to the usual course and practice of the court.

Plaintiffs moved, upon said opinion and judgment being certified down, that the order of confirmation be vacated, without more, thus seeking to have the case tried before a jury. The court declined to sign the judgment tendered on this motion, but remanded the cause "in accordance with the opinion of the Supreme Court" to the referee for additional findings and supplemental report. This was within his authority; the original reference having been by consent. Morisey v. Swinson, 104 N.C. 555, 10 S.E. 754; Driller Co. v. Worth, 117 N.C. 515, 23 S.E. 427; Flemming v. Roberts, 77 N.C. 415.

The order sending the cause back to the referee was perforce tantamount to vacating the previous order of confirmation. Of course, the plaintiffs are entitled to notice and a hearing before the referee, with right of appeal to the court in case his additional findings are adverse. As thus construed, we perceive no cause for complaint on the part of the plaintiff.

Affirmed.