Caudell v. Blair

119 S.E.2d 172, 254 N.C. 438, 1961 N.C. LEXIS 460

• Court: Supreme Court of North Carolina
• Decided: April 12, 1961
• Status: Published

Opinion

Defendant’s Appeal

WiNBORNE, C.J.

The pivotal question on defendant’s appeal is whether or not the findings of fact and conclusions of law incorporated in the judgment of the court below, and the portions of the referee’s report and supplemental report approved therein, are supported by competent evidence.

This action involves a course of dealing between the parties for a substantial period of time, and necessarily contains a long and complicated account. In such case an order for a compulsory reference will be affirmed. G.S. 1-189. Mfg. Co. v. Horn, 203 N.C. 732, 167 S.E. 42.

Furthermore, it is well settled in this State 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. Dorsey v. Mining Co., 177 N.C. 60, 97 S.E. 746.

Likewise the judge, upon hearing and considering exceptions to a referee’s report and supplemental report, may affirm, overrule, modify or make different or additional findings of fact. This affords no ground for exception on appeal, unless such action, by the judge is not supported by sufficient evidence, or error has been committed in receiving or rejecting testimony upon which they are based. G.S. 1-194. Kenney v. Hotel Co., 194 N.C. 44, 138 S.E. 349; Gurgarms v. McLawhorn, 212 N.C. 397, 193 S.E. 844. Threadgill v. Faust, 213 N.C. 226, 195 S.E. 798; Ramsey v. Nebel, 226 N.C. 590, 39 S.E. 2d 616.

Therefore, applying these principles of law to the present case, the conclusion is that the findings of fact by the court from the referee’s report and supplemental report, are supported by competent and sufficient evidence. Indeed, the record contains no assignment of error as to the admission of evidence.

Matters to which other exceptions and assignments of error relate have been given due consideration, and in them prejudicial error is not made to appear.

For reasons stated, the judgment from which defendant appeals is affirmed.

Plaintiff’s Appeal

Plaintiff’s appeal is based on asserted error in failing to adjudge defendant’s cross-action barred by the statute, of limitations. He pleaded the statute because defendant’s cross-action asserted liability beyond the sum which plaintiff paid into court. Judge Paul’s judgment, now affirmed on appeal, fixes the amount of plaintiff’s liability in the sum admitted by him. Hence it is unnecessary to determine whether the statute of limitations pleaded by plaintiff would have barred defendant’s action for anything in excess of the amount adjudged. But having paid into court his admitted liability he will not now be permitted to change his position.

For reasons stated, the judgment from which the plaintiff appeals is affirmed.

On defendant’s appeal — affirmed.

On plaintiff’s appeal — affirmed.

Bobbitt, J., Concurs in result. MooRE, J., took no part in the consideration or decision of this case.