Hardaway Contracting Co. v. Western Carolina Power Co.

Supreme Court of North Carolina

Hardaway Contracting Co. v. Western Carolina Power Co.

143 S.E. 241, 195 N.C. 649, 1928 N.C. LEXIS 171

CourtSupreme Court of North Carolina

DecidedMay 23, 1928

StatusPublished

Cited by12 cases

This text of 143 S.E. 241 (Hardaway Contracting Co. v. Western Carolina Power Co.) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hardaway Contracting Co. v. Western Carolina Power Co., 143 S.E. 241, 195 N.C. 649, 1928 N.C. LEXIS 171 (N.C. 1928).

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Opinion

Stacy, C. J.,

after stating the facts: It is the position of the plaintiff that as the reference was to report the facts, under C. S., 579, such report has the effect of a special verdict, and the defendant, having asked for the reference, is bound thereby and cannot now except to any finding of fact made by the referee, save upon the ground that there is no evidence to support it. Davis v. Schwartz, 155 U. S., 631, 39 L. Ed., 289; 23 R. C. L., 299.

To adopt this construction, we apprehend, would be to overlook the section immediately preceding, 0. S., 578, which provides that “either party, during the term or upon ten days notice to the adverse party out of term, may move the judge to review the report, and set aside, modify or confirm it, in whole or in part, and no judgment may be entered on any reference except by order of the judge.” And our decisions are to the effect that, upon exceptions duly filed, the judge of the Superior Court, in the exercise of bis supervisory power and under the statute, may affirm, amend, modify, set aside, make additional findings and confirm, in whole or in part, or disaffirm the report of a referee. S. v. Jackson, 183 N. C., 695, 110 S. E., 593; Vaughan v. Lewellyn, 94 N. C., 472.

Indeed, the view now urged by the plaintiff was considered by the court in the case of Lawrence v. Hyman, 79 N. C., 209, and disposed of as follows: “It was insisted here that the reference having been made under The Code, the finding of the referee was in the nature of a special verdict, and is conclusive of the facts, and not reviewable on exceptions. *652 We consider this question settled adversely to this contention, by the cases of Green v. Castlebury, 70 N. C., 20, and Armfield v. Brown, 70 N. C., 27.”

There was no error in the ruling from which the plaintiff appeals.

But the appeal is premature, being, as it is, from an interlocutory order, and for this reason it must be dismissed. We have thought it better, however, to express an opinion on the question of procedure sought to be presented, as such may be helpful at the present time, a course pursued in a number of eases and permissible under our decisions. Sneed v. Highway Com., 194 N. C., 46, 138 S. E., 350; S. v. Carroll, 194 N. C., 37, 138 S. E., 339; Corp. Com. v. Mfg. Co., 185 N. C., 17, 116 S. E., 178.

Appeal dismissed.

Clarkson and Brogden, J.J., took no part in the consideration or decision of this case.

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Stacy, C. J.,

after stating the facts: It is the position of the plaintiff that as the reference was to report the facts, under C. S., 579, such report has the effect of a special verdict, and the defendant, having asked for the reference, is bound thereby and cannot now except to any finding of fact made by the referee, save upon the ground that there is no evidence to support it. Davis v. Schwartz, 155 U. S., 631, 39 L. Ed., 289; 23 R. C. L., 299.

To adopt this construction, we apprehend, would be to overlook the section immediately preceding, 0. S., 578, which provides that “either party, during the term or upon ten days notice to the adverse party out of term, may move the judge to review the report, and set aside, modify or confirm it, in whole or in part, and no judgment may be entered on any reference except by order of the judge.” And our decisions are to the effect that, upon exceptions duly filed, the judge of the Superior Court, in the exercise of bis supervisory power and under the statute, may affirm, amend, modify, set aside, make additional findings and confirm, in whole or in part, or disaffirm the report of a referee. S. v. Jackson, 183 N. C., 695, 110 S. E., 593; Vaughan v. Lewellyn, 94 N. C., 472.

Indeed, the view now urged by the plaintiff was considered by the court in the case of Lawrence v. Hyman, 79 N. C., 209, and disposed of as follows: “It was insisted here that the reference having been made under The Code, the finding of the referee was in the nature of a special verdict, and is conclusive of the facts, and not reviewable on exceptions. *652 We consider this question settled adversely to this contention, by the cases of Green v. Castlebury, 70 N. C., 20, and Armfield v. Brown, 70 N. C., 27.”

There was no error in the ruling from which the plaintiff appeals.

But the appeal is premature, being, as it is, from an interlocutory order, and for this reason it must be dismissed. We have thought it better, however, to express an opinion on the question of procedure sought to be presented, as such may be helpful at the present time, a course pursued in a number of eases and permissible under our decisions. Sneed v. Highway Com., 194 N. C., 46, 138 S. E., 350; S. v. Carroll, 194 N. C., 37, 138 S. E., 339; Corp. Com. v. Mfg. Co., 185 N. C., 17, 116 S. E., 178.

Appeal dismissed.

Clarkson and Brogden, J.J., took no part in the consideration or decision of this case.

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143 S.E. 241, 195 N.C. 649, 1928 N.C. LEXIS 171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hardaway-contracting-co-v-western-carolina-power-co-nc-1928.

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