Crowley v. McDougald

85 S.E.2d 377, 241 N.C. 404, 1955 N.C. LEXIS 379

Opinion

Johnson, J.

The plaintiff’s only exception is to the signing of the judgment. This is sufficient to present for review the question whether error of law appears upon the face of the record. Bond v. Bond, 235 N.C. 754, 71 S.E. 2d 53.

The referee’s report was filed 5 April, 1954. ' The judgment below confirming the report was entered at the one-week term of court which convened 19 April, 1954, before expiration of the plaintiff’s 30-day period for filing exceptions as allowed by statute, G-.S. 1-195. She insists that the record discloses no waiver of her right to file exceptions to the report any time during the 30-day period and that the premature entry of judgment of confirmation is error appearing upon the face of the record. This view is supported by the record. The plaintiff’s action in moving for voluntary nonsuit does not preclude her from filing exceptions to the referee’s report. True, any exceptions directed to the merits of the case would seem to be at variance with stipulations reported by the referee to have been entered into by tbe plaintiff at tbe bearing. However, tbe record on appeal does not contain any part of tbe transcript of tbe proceedings before tbe referee, and it bas not been made to appear that tbe stipulations were reduced to writing and signed by tbe plaintiff or her counsel. Eatber, upon tbe record as presented, tbe stipulations appear only in tbe findings of fact as formulated and reported by tbe referee. Therefore, on tbis record, it would seem that tbe stipulations as reported are subject to challenge by exception along with tbe referee’s general findings and conclusions.

For tbe error indicated the judgment appealed from will be vacated and tbe cause will be remanded to tbe court below for further proceedings in accord with tbis opinion.

Error and remanded.