Ward v. . Sewell

199 S.E. 28, 214 N.C. 279, 1938 N.C. LEXIS 323

• Court: Supreme Court of North Carolina
• Decided: October 12, 1938
• Status: Published

Opinion

Stacy, C. J.

It hardly seems worth while to debate tbe question whether plaintiff bas waived bis right to a jury trial by failure to tender proper issues upon bis exceptions to tbe report of tbe referee when it appears on tbe face of tbe record tbat a compulsory reference was ordered without first disposing of tbe pleas in bar. Graves v. Pritchett, 207 N. C., 518, 177 S. E., 641; McIntosh N. C. Prac. and Proc., 564. Why engage in tbe fruitless task of deciding a question of procedure in a reference which eventually must be set aside? Pritchett v. Supply Co., 153 N. C., 344, 69 S. E., 249.

Tbe order of reference will be vacated and tbe cause remanded for further proceedings as to justice appertains and tbe rights of tbe parties may require.

Remanded.