Wilson v. Allsbrook

• Decision Date: 10 January 1934
• Docket Number: No. 443.,443.
• Citation: 172 S.E. 217,205 N. C. 597
• Court: North Carolina Supreme Court
• Parties: WILSON et al. v. ALLSBROOK et al.

172 S.E. 217

205 N. C. 597

WILSON et al.

v.ALLSBROOK et al.

No. 443.

Supreme Court of North Carolina.

Jan. 10, 1934.

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

Action by E. McL. Wilson and others against O. O. Allsbrook, trustee, and another. From a judgment confirming the referee's report, plaintiffs appeal.

Affirmed.

Civil action to restrain threatened foreclosure under third deed of trust, and for an accounting.

I. C. Wright, of Wilmington, for appellants.

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

STACY, Chief Justice.

At the February term, 1932, New Hanover superior court, there was a consent reference in this cause. At the June term, 1932, judgment confirming the report of the referee was entered, from which the plaintiffs appealed. The cause was remanded for an additional finding of fact. 203 N. C. 498, 160 S. E. 313.

At the February term, 1933, over objection of plaintiffs, the matter was remanded to the referee for the additional fact to be found, in accordance with the opinion of the Supreme Court. The plaintiffs again appealed, 204 N. C. 479, 168 S. E. 676.

Pending this second appeal, the referee, on March 2, 1933, filed his supplemental report ostensibly upon the evidence already taken and without any additional hearing or notice to the parties. This was irregular. Griffin v. Bank, 205 N. C. 253, 171 S. E. 71; Bohannon v. Trust Co., 198 N. O. 702, 153 S. E. 263; Pruett v. Power Co., 167 N. C. 598, S3 S. E. 830.

Recognizing the inappropriateness of this procedure, the referee, following the judgment of affirmance on appeal, opinion filed April 5, 1933, 204 N. C. 479, 168 S. E. 676, gave notice of hearing, took additional evidence, made his additional finding of fact, and reported the same to the court in a supplemental report filed May 17, 1933. Exceptions were duly filed to this report, which were overruled, and the same confirmed in all respects at the May term, 1933. Plaintiffs again appeal.

The supplemental report is supported by ample evidence, and the same has been approved by the judge of the superior court. This would seem to end the matter. Kenney v. Hotel Co., 194 N. C. 44, 138 S. E. 349. It is settled by all the decisions on the subject, with none to the contrary, that the findings of fact, made by a referee and approved by the trial judge, are not subject to review on appeal, if supported by any competent evidence, unless some error of law has been committed in the hearing of the cause. Corbett v. R. R., 205 N. C. 85, 170" S. E. 129; Wallace v. Benner, 200 N. C. 124, 156 S. E. 795; Standard Crown Co. v. Jones, 196 N. C. 208, 145 S. E. 5; Robinson v. Johnson, 174 N. C. 232, 93 S. E. 743; Thompson v. Smith, 150 N. C. 345, 72 S. E. 379 (opinion by Walker, J., pointing out the difference between the duties of the trial court and the appellate court in dealing with exceptions to reports of referees); ...