Ziblin v. Long

• Decision Date: 28 March 1917
• Docket Number: (No. 304.)
• Parties: ZIBLIN v. LONG.
• Court: North Carolina Supreme Court

91 S.E. 837

(173 N.C. 235)

ZIBLIN

v.LONG.

(No. 304.)

Supreme Court of North Carolina.

March 28, 1917.

Appeal from Superior Court, Pender County; Connor, Judge.

Action by C. H. Ziblin against T. H. Long. From a judgment on findings of referee for plaintiff after compulsory reference on appeal from a judgment of the clerk of the superior court for plaintiff, defendant appeals. Affirmed.

This action was begun before the clerk of the superior court of Pender for the purpose of establishing a disputed boundary line in the nature of processioning proceedings. The clerk gave judgment in favor of the plaintiff, and on appeal the case was transferred to the civil issue docket, where a compulsory reference was made, to which order both the plaintiff and defendant excepted, and demanded a jury trial upon the issues raised by the pleadings. On the coining in of the report of the referee at a subsequent term there were four findings of fact and four conclusions of law by the referee, all adverse to the defendant, who excepted to each, and also demanded a jury trial upon each finding of fact. The defendant did not, however, eliminate and present the issues of fact which he desired presented to the jury.

McClammy & Burgwin, of Wilmington, for appellant.

C. E. McCullen, of Burgaw, and C. D. Weeks, of Wilmington, for appellee.

CLARK, C. J. This appeal presents the single question whether the court ruled cor-rectly in refusing to submit the case to the jury upon defendant's exception to the report of the referee.

This case is almost identical on this point with Ogden v. Land Co., 146 N. C. 443, 59 S. E. 1027, where it is said:

"As each exception was made, the defendants merely stated that, 'as to the matters and issues embraced in said finding, they and each of them demand a jury trial.' The defendants did not specify the particular fact controverted upon which they think an issue should be submitted to the jury, nor do they formally tender an issue upon each finding of fact against them to which they excepted."

In the same case the court, further said that the appellant had waived the right to a trial by jury "by not pointing out the questions or issues of fact they raised by the exceptions, and presenting such issues as they deem necessary to cover all of the controverted facts, " citing Driller Co. v. Worth, 117 N. C. 515, 23 S. E. 427, Which is the leading case on the subject, and Simpson v. Scronce, 152 N. C. 594, 67 S. E. 1060. In the present case, as in those, there...