State Ex Rel. Haywood County v. Welch

183 S.E. 727, 209 N.C. 583, 1936 N.C. LEXIS 302

Opinion

Pee Curiam.

Defendants contend that their answers set up a plea in bar which should have been disposed of before a compulsory reference was ordered. But upon consideration of the pleadings, we are of opinion that the order of reference was properly entered, and that defendants’ answer does not preclude the court from making such order at this time. Manifestly, the case, which involves more than five hundred items, must be tried by referee, unless the facts pleaded in the answer be such as to defeat plaintiff’s action absolutely and entirely in the outset before the necessity for an accounting be reached.

To constitute a plea in bar, there must be something more than a denial of plaintiff’s cause of action. It must extend to the whole cause of action so as to defeat it absolutely and entirely. Reynolds v. Morton, 205 N. C., 491. In Bank v. Evans, 191 N. C., 535, Brogden, J., defines what is meant by a plea in bar, and states the rule for the application of the principle invoked to procedure in cases requiring trial by referee.

Here defendants allege settlement with county commissioners, but, as pointed out in Commissioners v. White, 123 N. C., 534, this will not prevent a compulsory reference when the complaint recognizes attempted settlements and alleges errors and fraud, and seeks to surcharge and falsify the account and settlement. Jones v. Sugg, 136 N. C., 143.

The statutes relating to trials by referees serve a useful purpose and should be liberally construed. Jones v. Beaman, 117 N. C., 259.

Judgment affirmed.