Page Trust Co. v. Pumpelly, 194 N.C. 580 (1927)

Nov. 23, 1927 · Supreme Court of North Carolina

194 N.C. 580

PAGE TRUST COMPANY v. RAPHAEL W. PUMPELLY et al.

(Filed 23 November, 1927.)

1. Reference — Trials—Jury—Waiver—Issues.

Where on the appellant’s motion the trial court orders a reference, the appellant’s right to a jury trial upon issues submitted on exceptions duly taken is to be deemed waived, and in this case it is held, that the issues thus submitted were not sufficiently controverted by the adversary party.

2. Mortgages — Bills and Notes — Actions—Foreclosure—Notes—Makers— Husband and Wife — Appeal and Error.

In a suit to foreclose a mortgage executed by a man and his wife, the latter not having signed tile notes, a personal judgment against her is erroneous.

3. Appeal and Error — Transcript—Costs—Rules of Court — Printing.

Held, in this case the record on appeal was much too voluminous or in excess of that required to properly present the appeal, and the appellee at whose instance it was done is taxed with the cost of mimeographing it for the excess over the sixty pages allowed by Rule 26.

Appeal by defendant, Mrs. Amelie R. Pumpelly, and interpleaders, Lexington Grocery Company and Standard Oil Company, from Stack, J., at February Term, 1927, of Mooke.

Civil action to foreclose certain mortgages and deeds of trust.

At tbe February Term, 1926, “on motion of Mrs. Amelie R. Pumpelly and tbe other parties to the action,” the cause was referred under the statute to Hon. R. C. Lawrence, who, in .accordance with the usual course and practice, found the facts and reported same, together with his conclusions of law, to the court. On exceptions duly filed, and after hearing had thereon, the report of the referee was modified and approved by the judge of the Superior Court. All parties gave notice of appeal, but the appeals of M!rs. Amelie R. Pumpelly, Lexington Grocery Company and Standard Oil Company are the only ones which have been perfected. The others were abandoned, or they have been dismissed on motion.

U. L. Spence and J ohnson & J ohnson for plaintiff.

Hoyle & Hoyle for defendant, Mrs. Amelie R. Pumpelly, and inter-pleaders, Lexington Grocery Company and Standard Oil Company.

Francis S. Hassell for defendant, Atlantic Joint Stock Land Bank.

Stacy, C. I.

Tbe record in this case, wbicb was first bere at tbe Spring Term, 1926 (191 N. C., 675, 132 S. E., 594), is quite voluminous and contains more tban is necessary to a proper understanding of tbe appeal. Indeed, its diffuseness is somewhat confusing. Tbe immaterial matter, it is alleged, was inserted at tbe instance of tbe plaintiff. Tbe appellee, therefore, will be allowed to recover cost of mimeographing “not to exceed sixty pages for a transcript and twenty pages for a brief.” Eule 26, 192 N. C., p. 851. Tbe balance of tbe cost of mimeographing tbe record and briefs will be taxed against tbe plaintiff.

Tbe first exception imputes error to the trial court in denying appellants’ motion for a jury trial on exceptions filed to tbe referee’s report and issues tendered thereon. Jenkins v. Parker, 192 N. C., 188, 134 S. E., 419; Baker v. Edwards, 176 N. C., 229, 97 S. E., 16. Tbe ruling might well be upheld on tbe ground that a jury trial was waived when tbe reference was ordered “on motion of Mrs. Amelie E. Pumpelly and tbe other parties to tbe action,” being as it was in effect at least, a consent reference. But outside of this tbe issues raised by tbe appellants are not sufficiently controverted to call for a jury trial (Bruce v. Nicholson. 109 N. C., 202, 13 S. E., 790), save perhaps tbe question of Mrs. Pumpelly’s individual liability on certain notes executed by her husband, but not by herself. As to these, tbe judgment will be modified so as to relieve her of any individual liability thereon. Tbe inclusion of these notes in the judgment against Mrs. Pumpelly was evidently an oversight on tbe part of tbe learned judge who beard tbe case in tbe Superior Court. Tbe plaintiff has asked for no judgment against her on these notes. She signed tbe mortgage given to secure tbe payment of said notes, but not tbe notes themselves.

Tbe remaining exceptions are unsubstantial and call for no elaboration. They are not sustained.

Let tbe judgment be modified as above indicated and, as thus modified, it will be upheld.

Modified and affirmed.