Atkinson v. . Whitehead

77 N.C. 418

• Court: Supreme Court of North Carolina
• Decided: June 5, 1877
• Status: Published

Opinion

ByNüm, J.

The general constitutional right to a trial by jury is qualified by Art. IV, § 18 of the Constitution, which provides; “That in all issues of fact joined in any Court, the parties may waive the right to have the same determined by a jury, in which case the finding of the Judge upon the facts, shall have the force and effect of a verdict of a jury.’» The C. C. P. § 245, seems to have gone a step beyond this limitation of the Constitution, and in a certain class of cases, to authorize a compulsory reference, or a reference upon the application of one party to the action, without or against the consent of the other. This Court, however, has put such a construction upon § 245 of the Code, as harmonizes it with the constitutional right of trial by jury, by declaring that although a compulsory reference may be ordered under this section of the Code, yet when the report of the Referee is made and the material issues are eliminated by the exceptions taken thereto, the issues of fact thus joined by the pleadings, report and exceptions shall be submitted to a jury, if demanded in apt time. Klutz v. McKenzie, 65 N. C. 102; Armfield v. Brown, 70 N. C. 27; Green v. Castlebury, Ibid, 20; Keener v. Finger, Ibid, 35.

The only question to be determined in our ease is, whether the reference ordered, was compulsory or by the consent of the parties. After the pleadings were all in and the issues joined, upon the motion of the plaintiffs themselves, the reference was ordered by the Court, to take and state the account between the parties. This motion was not opposed; that is, was assented to by the defendant. The reference was therefore by consent and is the mode of trial selected by the parties and is a waiver of the right of trial by jury. After the reference so made, neither party as a matter of right is entitled to have a jury. The motion for a jury comes with no good grace from the party on whose motion it was waived.

As the account ordered to be stated involves all the issues made by the pleadings, including the entire administration of the defendant, there can be no force in the point made, that the reference ordered applied only to the first cause of action stated in the complaint, and not to the the second cause of action. Both causes of action, if there are two, relate to the same matter and are inseparable in-this action, which is for the final settlement of the defendant’s administration. The reference necessarily embraces all the issues and must be proceeded with according to law. There being no issues for trial by jury it was error to order the action to be removed to another County.

Error.

PER Cueiam. Judgment reversed.