Keith v. Silvia

Supreme Court of North Carolina

Keith v. Silvia

72 S.E.2d 686, 236 N.C. 293, 1952 N.C. LEXIS 542

CourtSupreme Court of North Carolina

DecidedOctober 8, 1952

StatusPublished

Cited by1 cases

This text of 72 S.E.2d 686 (Keith v. Silvia) 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

Keith v. Silvia, 72 S.E.2d 686, 236 N.C. 293, 1952 N.C. LEXIS 542 (N.C. 1952).

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Opinion

ValbNtiNE, J.

Conceding without deciding that the defendant’s appeal is not premature and fragmentary, we proceed to a discussion of the other question presented by this appeal. Were plaintiff’s exceptions to the referee’s report properly filed ?

When an appeal is certified to this Court, the Superior Court loses jurisdiction of all matters involved in the appeal until action is taken here and the opinion of this Court is certified back to the Superior Court. Hole v. Greyhound Corp., 227 N.C. 374, 42 S.E. 2d 407; Manufacturing Co. v. Arnold, 228 N.C. 375, 45 S.E. 2d 577; In re Puett’s Will, 229 N.C. 8, 47 S.E. 2d 488; Harris v. Fairley, 232 N.C. 555, 61 S.E. 2d 619; Bailey v. McPherson, 233 N.C. 231, 63 S.E. 2d 559; Green v. Ins. Co., 233 N.C. 321, 64 S.E. 2d 162.

At the time of the making of the order from which the first appeal arose, the report of the referee was not before the court for consideration and therefore no exception could have been filed at that time. When the opinion of this Court was certified on 2 April, 1951, the Superior Court of Henderson County for the first time since the former appeal acquired jurisdiction so that exceptions could be properly filed. In any event, the presiding judge had a right in the exercise of his discretion to permit the [295]*295filing of thp exceptions nunc pro tunc. Cheshire v. First Presbyterian Church, 221 N.C. 205, 19 S.E. 2d 855.

Ender G.S. 1-194, a judge of the Superior Court has a wide latitude of discretion over the report of a referee, with power to review, modify, confirm in whole or in part, or to set aside the report. Cummings v. Swepson, 124 N.C. 579, 82 S.E. 966; Dumas v. Morrison, 175 N.C. 431, 95 S.E. 775; Keith v. Silvia, 233 N.C. 328, 64 S.E. 2d 178.

There is no evidence of an abuse of discretion by the court below. We, therefore, conclude that the order from which the appeal was taken must be affirmed and the case is remanded for proper proceedings according to the course and practice of the court.

Affirmed.

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ValbNtiNE, J.

Conceding without deciding that the defendant’s appeal is not premature and fragmentary, we proceed to a discussion of the other question presented by this appeal. Were plaintiff’s exceptions to the referee’s report properly filed ?

When an appeal is certified to this Court, the Superior Court loses jurisdiction of all matters involved in the appeal until action is taken here and the opinion of this Court is certified back to the Superior Court. Hole v. Greyhound Corp., 227 N.C. 374, 42 S.E. 2d 407; Manufacturing Co. v. Arnold, 228 N.C. 375, 45 S.E. 2d 577; In re Puett’s Will, 229 N.C. 8, 47 S.E. 2d 488; Harris v. Fairley, 232 N.C. 555, 61 S.E. 2d 619; Bailey v. McPherson, 233 N.C. 231, 63 S.E. 2d 559; Green v. Ins. Co., 233 N.C. 321, 64 S.E. 2d 162.

At the time of the making of the order from which the first appeal arose, the report of the referee was not before the court for consideration and therefore no exception could have been filed at that time. When the opinion of this Court was certified on 2 April, 1951, the Superior Court of Henderson County for the first time since the former appeal acquired jurisdiction so that exceptions could be properly filed. In any event, the presiding judge had a right in the exercise of his discretion to permit the [295]*295filing of thp exceptions nunc pro tunc. Cheshire v. First Presbyterian Church, 221 N.C. 205, 19 S.E. 2d 855.

Ender G.S. 1-194, a judge of the Superior Court has a wide latitude of discretion over the report of a referee, with power to review, modify, confirm in whole or in part, or to set aside the report. Cummings v. Swepson, 124 N.C. 579, 82 S.E. 966; Dumas v. Morrison, 175 N.C. 431, 95 S.E. 775; Keith v. Silvia, 233 N.C. 328, 64 S.E. 2d 178.

There is no evidence of an abuse of discretion by the court below. We, therefore, conclude that the order from which the appeal was taken must be affirmed and the case is remanded for proper proceedings according to the course and practice of the court.

Affirmed.

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72 S.E.2d 686, 236 N.C. 293, 1952 N.C. LEXIS 542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keith-v-silvia-nc-1952.

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