Wilson v. Allsbrook, 205 N.C. 597 (1934)

Jan. 10, 1934 · Supreme Court of North Carolina

205 N.C. 597

E. McL. WILSON et al. v. O. O. ALLSBROOK et al.

(Filed 10 January, 1934.)

Reference O d — Held: appellant was not prejudiced by affirmance of supplemental report, and judgment of affirmance is upheld.

■ The findings of fact by the referee, supported by evidence and approved by the trial court are conclusive on appeal unless some error of law has been committed in the hearing, and where an order remanding the case to the referee for additional facts has been entered, and on appeal therefrom the order is affirmed, a hearing by the referee after notice without further order from the court, and his finding of such additional facts will not support an appeal, it appearing that no prejudice has resulted to appellants by failure of the trial court to order the case remanded after affirmance of the appeal if such order was necessary, the additional findings being supported by evidence and being approved by the trial court, but if such order is necessary it could be entered nunc pro tunc.

Appeal by plaintiffs from Sinclair, J., at May Term, 1933, of New HaNOVEB.

Civil action to restrain threatened foreclosure under third deed of trust, and for an accounting.

I. G. Wright for plaintiffs.

Charles B. Newcomb and John A. Stevens for defendants.

Stact, C. J.

At the February Term, 1932, New Hanover Superior Court, there was a consent reference in this cause. At the June Term, 1932, judgment confirming the report of the referee was entered, from which the plaintiffs appealed. The cause was remanded for an additional finding of fact. 203 N. C., 498, 166 S. E., 313.

At the February Term, 1933, over objection of plaintiffs, the matter was remanded to the referee for the additional fact to be found, in accordance with the opinion of the Supreme Court. The plaintiffs again appealed. 204 N. C., 479, 168 S. E., 676.

Pending tbis second appeal, tbe referee, on 2 March, 1933, filed bis supplemental report ostensibly upon tbe evidence already taken and without any additional bearing- or notice to tbe parties. Tbis was irregular. Griffin v. Bank, ante, 253; Bohannon v. Trust Co., 198 N. C., 702, 153 S. E., 263; Pruett v. Power Co., 167 N. C., 598, 83 S. E., 830.

Recognizing tbe inappropriateness of tbis procedure, tbe referee, following tbe judgment of affirmance on appeal, opinion filed 5 April, 1933, 204 N. C., 479, 168 S. E., 676, gave notice of bearing, took additional evidence, made bis additional finding of fact and reported 'the same to tbe court in a supplemental report filed 17 May, 1933. Exceptions were duly filed to tbis report, which were overruled, and tbe same confirmed in all respects at tbe May Term, 1933. Plaintiffs again appeal.

Tbe supplemental report is supported by ample evidence, and tbe same has been approved by tbe judge of tbe Superior Court. Tbis would seem to end tbe matter. Kenney v. Hotel Co., 194 N. C., 44, 138 S. E., 349.

It is settled by all tbe decisions on tbe subject, with none to tbe contrary, that tbe findings of fact, made by a referee and approved by tbe trial judge, are not subject to review on appeal, if supported by any competent evidence, unless some error of law has been committed in tbe bearing of tbe cause. Corbett v. R. R., ante, 85; Wallace v. Benner, 200 N. C., 124, 156 S. E., 795; Crown Co. v. Jones, 196 N. C., 208, 145 S. E., 5; Robinson v. Johnson, 174 N. C., 232, 93 S. E., 743; Thompson v. Smith, 156 N. C., 345, 72 S. E., 379 (opinion by Walker, J., pointing out tbe difference between tbe duties of tbe trial court and tbe appellate court in dealing with exceptions to reports of referees); Dorsey v. Mining Co., 177 N. C., 60, 97 S. E., 746.

Rut it is tbe position of tbe plaintiffs that tbe referee was without authority to proceed in tbe cause in tbe absence of an order remanding tbe case to him following tbe judgment of affirmance rendered 5 April, 1933. Conceding, without deciding, that tbe plaintiffs’ position in tbis respect may be well taken, we fail to see wherein tbe plaintiffs have been prejudiced by tbe course pursued in tbe court below. Tbe matter bad already been remanded to tbe referee, and tbis was affirmed on appeal. 204 N. C., 479, 168 S. E., 676. But if need be, an order wane pro tunc would cure any defect. Powell v. Fertilizer Works, ante, 311. Tbe plaintiffs were given a bearing by tbe referee, additional testimony was taken, and tbe supplemental report has been reviewed on exceptions by tbe judge. Tbis same procedure would be followed again, if tbe judgment were vacated.

Affirmed.