Yelverton v. Colby
| Citation | 101 N.C. 248,2 S.E. 672 |
| Parties | Yelverton v. Colby. |
| Decision Date | 22 October 1888 |
| Court | United States State Supreme Court of North Carolina |
Reference—Right to Jury Trial—Exceptions to be Specified.
Though either party to a compulsory reference ordered under Code N. C. § 421, has the right, by definite exception to the referee's findings, to have any issue of fact passed on by a jury, yet a jury trial on exception " to all the findings of the referee on the issues of fact, " except one specified, is properly denied.
W. R. Allen, for appellee.
Davis, J. Civil action, tried before Shipp, J., at April term, 1888, of the superior court of Wayne county. The action was brought for the possession of personal property, to January term, 1888, of the superior court of Wayne county. At March term, 1888, upon a suggestion of the plaintiff and admission of defendant that its trial would require the examination of a long account, the judge presiding (against the opposition of the defendant) made a compulsory reference for the trial thereof to a referee, under the Code. At April term, 1888, the referee having filed his report, the plaintiff moved for judgment confirming the same. The defendant opposed the granting of said motion of the plaintiff and made to the court the following written motion and exceptions: This is signed by counsel for defendant. His honor refused to grant the motion of the defendant, unless he would specify the particular item or items of the account accompanying the report, objected to by the defendant, or state what issues he wanted to submit to the jury, arising on the exceptions. The defendant declined to modify his motion and insisted upon the alleged right to have the issues of fact arising on the pleadings submitted to a jury. His honor thereupon rendered judgment confirming the report. Defendant excepted to that part of the judgment which adjudged that the plaintiff recover of the defendant the corn fodder, cotton, and cotton-seed specified in this action, and the cost of this action. The foregoing is a statement of the case on appeal, signed by counsel for the...
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... ... 738, 150 S.E. 355; Brown v. Buchanan, 194 N.C. 675, 140 S.E. 749; Bradshaw v. Hilton Lumber Co., 172 N.C. 219, 90 S.E. 146; Yelverton v. Coley, 101 N.C. 248, 7 S.E. 672; Carr v. Askew, 94 N.C. 194. But a party to a compulsory reference waives his right to a jury trial by failing to ... ...
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