Atlantic Joint Stock Land Bank v. Fisher

173 S.E. 907, 206 N.C. 412, 1934 N.C. LEXIS 195

• Court: Supreme Court of North Carolina
• Decided: April 11, 1934
• Status: Published

Opinion

Per Curiam.

Although tbe defendant Zeb Y. Eisber, in bis answer prayed that “this clause be referred to a referee to take and state an account between tbe plaintiff and tbe defendants, and report same to tbe court as provided by law,” tbe said defendant joined with bis co-defendant, Mary M. Eisber, in an exception to tbe order of reference. It is not contended by either of said defendants in this appeal that there was error in tbe order of reference, for tbe reason that this is not a proper case for a compulsory reference, C. S., 573. Tbe exception to tbe order of reference was apparently for tbe sole purpose of preserving tbe right of tbe defendants to a trial by jury of tbe issues arising on tbe pleadings. Tbeir only contention on this appeal is tbat there was error in tbe refusal of tbe judge to submit tbe issues appearing in tbe record to a jury. These issues, however, do not arise in tbe defendants’ exceptions to tbe report of tbe referee. For tbat reason, there was no error in tbe refusal of tbe judge to submit tbe issues tendered to a jury. By tbeir failure to tender appropriate issues arising on tbeir exceptions, tbe defendants waived tbeir right to a trial by jury. See Booker v. Highlands, 198 N. C., 282, 151 S. E., 635.

Tbe judgment is supported by tbe findings of fact made by tbe referee, and approved by tbe judge. For tbat reason, tbe judgment is

Affirmed.