Franklin v. Crossnore School

195 S.E. 792, 213 N.C. 263, 1938 N.C. LEXIS 65

Opinion

Stacy, C. J.

It does not appear from the judgment entered at the October Term, 1937, Avery Superior Court, how the new trial is to be had, whether by reference, the judge, or the jury. There was no error in declining to sign the order tendered by defendants, for in the original order of reference the parties “merely waived the right to a jury trial” and did not agree upon the referee. Indeed it is stipulated in the order that in case of “an appeal by either party” from the report of the referee the judge shall “hear the facts in the same manner as the jury,” and shall “have the right to find the facts in their entirety, ... all of which shall be subject to the approval of the trial judge at the time.” Whether this order, which contains several unusual provisions (In re Snelgrove, 208 N. C., 670, 182 S. E., 335), still subsists as a valid order in the cause was not determined in the court below. Edwards v. Perry, 206 N. C., 474, 174 S. E., 285; 20 R. C. L., 323.

The question debated on argument and in brief, i.e., whether interlocutory orders, entered without objection or by consent, are vacated when a new trial is granted for newly discovered evidence is not before us for decision. It is conceded that the final judgment and the verdict or findings upon which it rests are ex necessitate set aside by the order. 20 R. C. L., 317.

The appeal is premature and must be dismissed.

Appeal dismissed.