Marshville Cotton Mills, Inc. v. Maslin

156 S.E. 484, 200 N.C. 328, 1931 N.C. LEXIS 317

• Court: Supreme Court of North Carolina
• Decided: January 27, 1931
• Status: Published

Opinion

Stacy, C. J.

The first exception imputes error to the trial court in ordering a reference in this case. The exception is without merit. C. S., 573, provides for a compulsory reference, “2. Where the taking of an account is necessary for the information of the court, before judgment, or for carrying a judgment or order into effect.” Chalk v. Bank, 87 N. C., 200.

“Our statutes relating to trials by referees serve a useful purpose and must be liberally construed. They aid and simplify the work which would otherwise fall upon the court and jury, and often expedite the litigation and save the parties from trouble and expensive trials, and are a saving in time to witnesses and attorneys” — Faircloth, C. J., in Jones v. Beaman, 117 N. C., 259, 23 S. E., 248.

The appellant next complains at the action of the trial court in overruling his motion for a jury trial on the issues tendered by him. The ruling of the court is supported by what was said in Booker v. Highlands, 198 N. C., 282, 151 S. E., 635; Robinson v. Johnson, 174 N. C., 232, 93 S. E., 743, and Driller Co. v. Worth, 117 N. C., 515, 23 S. E., 427.

A party who would preserve his right to a jury trial in a compulsory reference must object to the order of reference at the time it is made, and on the coming in of the report of the referee, if it be adverse, he should seasonably file exceptions to particular findings of fact made by the referee, tender appropriate issues based on the facts pointed out in the exceptions and raised by the pleadings, and demand a jury trial on each of the issues thus tendered. Wilson v. Featherstone, 120 N. C., 446, 27 S. E., 124; Yelverton v. Coley, 101 N. C., 248, 7 S. E., 672. This was nqt done in the instant case. Although a party may duly enter his objection to the order of reference, he may yet waive his right to a jury trial by failing to assert such right definitely and specifically in each exception to the referee’s report and by his failing to tender the proper issues. Alley v. Rogers, 170 N. C., 538, 87 S. E., 326.

Affirmed.