Jenkins v. . Parker

134 S.E. 419, 192 N.C. 188, 1926 N.C. LEXIS 251

• Court: Supreme Court of North Carolina
• Decided: September 22, 1926
• Status: Published

Opinion

Stagy, C. J.

The appeal presents the question as to whether the defendant is entitled to a jury trial on any of his exceptions filed to the report of the referee. "We think not.

When a compulsory reference is ordered, the party who would preserve the right to have the issues found by a jury, must duly except to the order of reference; and, upon the coming in of the referee’s report, if it be adverse, he must file «exceptions thereto in apt time, properly tender appropriate issues, and demand a jury trial on each of the issues tendered, and, if the referee’s report be in his favor, he must seasonably tender issues on tbe exceptions, if any, filed to tbe report by tbe adverse party, and demand a jury trial tbereon, or else tbe right to bave tbe controverted facts determined by a jury will be deemed to be waived, so far as be is concerned. Driller Co. v. Worth, 117 N. C., 515; Baker v. Edwards, 176 N. C., 229.

Tbe reason tbe successful party before tbe referee is required to tender issues on tbe exceptions filed by bis adversary and demand a jury trial tbereon, in order to preserve bis right to bave tbe controverted facts settled by tbe jury, is apparent when it is remembered that tbe losing party before tbe referee may waive bis right to a jury trial on exceptions filed by him or withdraw bis demand therefor at any time. Robinson v. Johnson, 174 N. C., 232.

Here, it is conceded, tbe defendant tendered no issues on tbe exceptions filed by him to tbe referee’s' report. This was a waiver of bis right to bave tbe controverted matters of fact determined by a jury. Simpson v. Scronce, 152 N. C., 594.

Other objections to tbe validity of tbe trial were argued on tbe bearing, but as they cannot be sustained, and present no new question of law, we deem it unnecessary to deal with them in an opinion.

Affirmed.