Collins v. Young Bros., 118 N.C. 265 (1896)

Feb. 1896 · Supreme Court of North Carolina

118 N.C. 265

HARDY COLLINS v. YOUNG BROTHERS.

Practice — Reference— Waiver of Jury — Findings of Ref eree — Appeal—Assignment of Hrrors.

1. Where an order of reference is made at plaintiff’s request, or-without objection by him, the right to a trial by jury is thereby waived and cannot be recalled except by consent of' all parties.

2. The findings of fact by a referee, when there is any evidence to-support them, is conclusive.

3. Where no error is assigned on appeal the judgment below will be affirmed.

Civil aotioN, heard before Timberlahe, J., at Fall Term,, 1895, of HarNEtt Superior Court. There was judgment for the defendant and plaintiff appealed.

Messrs. L. B. Chapin and W. E. Murchison, for plaintiff (appellant).

Mr. F. B. Jones, for defendant.

Faircloth, C. J.:

At the trial, but before the ease was heard, the plaintiff demanded a jury trial, which was refused. In the case sent to this Court by his Honor it appears that when the order of reference was made, the plaintiff interposed no objection, and also that the order was made at the plaintiff’s request. This was a waiver •of the right to a jury trial which could not be recalled except by consent. Driller Co. v. Worth, 117 N. C., 515, where the authorities are collected.

The findings of fact by the referee, when there is any evidence, are.not reviewable in this Court. The exceptions made before the referee in this case are not reviewable here. The case states that the plaintiff ■excepted'to the judgment, but no errors are assigned, so ■that in this respect there is nothing before us.

Affirmed.