Alley v. Rogers, 170 N.C. 538 (1915)

Dec. 22, 1915 · Supreme Court of North Carolina

170 N.C. 538

PAULINE ALLEY et al. v. DAVID ROGERS.

(Filed 22 December, 1915.)

1. Reference — Pleas in Bar — -Limitation of Actions.

A plea in bar must be to tbe “whole action” or to the “entire cause of action,” to require that it be determined before reference ordered; and -when it appears that the reference involved taking a mutual account between the parties, of long standing, for services charged and payments made, extending to a short time before the commencement of the action, a reference was proper; and upon the findings of the referee, confirmed by the trial court, in this case, the action was not barred by the statute. Btancil v. Burgwyn, 124 N. C., 69.

2. Reference — Jury—Waiver.

A party objecting to a compulsory reference waives his right to a trial by jury by failing to assert it definitely and specifically in each exception to the report and to file the proper issues he desires to be submitted to them.

3. Reference — Findings—Appeal and Error.

Findings of fact by the referee, supported by sufficient evidence and confirmed by the trial judge, are conclusive on appeal.

Appeal by defendant from Cline, J., at February Term, 1915, of JACKSON.

Civil action upon exceptions to referee’s report. His Honor overruled defendant’s exceptions, confirmed the report, and rendered judgment for plaintiff. Defendant appealed.

C. C. Cowan, Alley & Leatherwood for plaintiff.

Moore & Moore, Bourne, Parker & Morrison and Theodore F. Davitd-son for defendant.

BeowN, J.

"We will not consider seriatim the thirty-four -assignments of error in the record, but only those salient points determinative of the case. The action was commenced 13 March, 1913. The plaintiffs complain that from 15 March, 1895, until 15 October, 1911, at the request of the defendant, they furnished to him board, food, lodging, attendance, and other necessaries, doing his mending, laundry, and furnishing food and lodging for his laborers on his farms and his many business visitors during said period, and feed for his visitors’ teams, and in every year of said period tbe defendant made payments on tbe account of said services, directing tbe same to be credited on tbe running account between them, tbe total of wbicb said payments amounts to $411.83,.and tbat tbe services of tbe plaintiffs rendered to tbe defendant during said period were reasonably worth tbe sum of $2,885.03, leaving a balance due tbe plaintiffs of $2,573.17.

Tbe defendant answered, admitting tbe services rendered and admitting tbat be made payments from time to time, and insists tbat tbe payments wbicb be made were reasonably worth what tbe services would reasonably amount to, and attempted to plead tbe statute of limitations.

Tbe .evidence shows tbat payments were made by tbe defendant on this account during tbe entire period, some in each year, tbe last two being, tbe year 1912, $10, and tbe year 1913, $10.

1. Tbe court ordered a compulsory reference. Tbe defendant contends tbat tbe statute of limitations is properly pleaded in bar of a recovery, and tbat it was error to refer tbe cause before determining this plea.

We doubt if tbe plea is well pleaded. Murray v. Barden, 132 N. C., 136; Lassiter v. Roper, 114 N. C., 20.

However tbat may be, it is not a bar to tbe wdiole cause of action set out in tbe complaint. It does not necessarily bar tbe entire cause of action, for it is alleged tbat tbe defendant made payments upon a running and mutual account up to 1913.

As the statute of limitations in this case involves mixed questions of law and fact, it was necessary to take and state tbe account. Upon tbe facts as found by tbe referee, tbe statute does not bar a recovery. Stancil v. Burgwyn, 124 N. C., 69-71.

In those eases where this Court has held tbat a reference should not be made when there is a plea in bar, tbe plea constituting tbe bar has extended to tbe whole action, and tbe Court seems to have been particular to have used tbe term “whole action” or “entire cause of action.” Oldham v. Rieger, 145 N. C., 254; Duckworth v. Duckworth, 144 N. C., 620; Jones v. Wooten, 137 N. C., 421; Bank v. Fidelity Co., 126 N. C., 320; Comrs. v. White, 123 N. C., 534.

2. Tbe defendant contends tbat the court erred in denying him a trial by jury. If defendant desired to preserve bis right to a jury trial be should have formulated tbe issues arising upon bis exceptions and filed them at tbe time of filing bis exceptions.

Tbe Court finds tbat no such issues were made, tendered, attached to or filed with said exceptions. Some issues appear in tbe printed record, but by examination it will be seen tbat these are no part of tbe record or of the case on appeal, and, as appears from tbe certificate of tbe clerk thereto appended, were not filed until two months after defendant’s exceptions were filed.

It has been, frequently beld that although a party duly enters his objection to a compulsory reference, he may waive it by failing to assert such right definitely and specifically in each exception to the referee’s report and by their failing to file the proper issues. Driller Co. v. Worth, 117 N. C., 515, and cases cited in annotated edition; Keerl v. Hays, 166 N. C., 553.

3. It is contended that there is no sufficient evidence to sustain the findings of fact. The weight of the evidence is not for us to pass on. An examination of the record discloses abundant competent evidence to sustain the allegations of the complaint'and the findings of the referee. These findings were confirmed by the judge, and the conclusions of law necessarily follow from such a state of facts. The judgment is

Affirmed.