Edwards v. Perry, 206 N.C. 474 (1934)

May 2, 1934 · Supreme Court of North Carolina

206 N.C. 474

O. A. EDWARDS and C. H. HALL, Administrators, et al., v. J. B. PERRY.

(Filed 2 May, 1934.)

1. Reference D b—

An order entered by consent of tlie parties upon a bearing of exceptions to a referee’s report that issues raised by the exceptions should be submitted to the jury is valid although the original reference was by consent.

2. Courts A f—

A judge of the Superior Court may not strike out ex mero motu an order entered in the cause at a prior term by another Superior Court judge, or disregard such prior order.

Appeal by plaintiffs and defendant from Barnhill, J., at February Special Term, 1934, of Waice.

Civil action for an accounting with respect to transactions had between plaintiffs’ intestate and the defendant over a period of approximately twenty years.

The defendant denied liability and set up a counterclaim.

At the April Term, 1933, there was an order of reference by consent entered in the cause.

At the December Term, 1933, the matter came on for hearing upon exceptions filed by both sides to the report of the referee. After a full consideration of the case, it was ordered, Judge Harris, presiding, with the consent of the parties, that certain issues raised by the exceptions be submitted to a jury at a subsequent term of court.

At the February Special Term, 1934, Judge Barnhill, presiding, the order entered at the previous December Term was stricken out ex mero motu, or disregarded, on the ground that a jury trial was not in order as the original reference was by consent and both parties had thereby waived their rights to a jury trial. To this ruling the plaintiffs objected and excepted.

The court thereupon considered the exceptions to the referee’s report, sustained some and overruled others, and entered judgment accordingly.

Both sides appeal, assigning errors.

E. D. Flowers and J. G. Mills for plaintiffs.

Gulley & Gulley for defendant.

Stacy, C. J.

The consent order entered at the December Term, 1933, which provided for a jury trial upon certain issues, would seem to be valid. Deaver v. Jones, 114 N. C., 649, 19 S. E., 637, Stump v. Long, 84 N. C., 616. True, it could not have been entered except by consent. Driller Co. v. Worth, 117 N. C., 515, 23 S. E., 427; Lance v. Russell, 157 N. C., 448, 73 S. E., 151; Flemming v. Roberts, 77 N. C., 415. But baying been entered by consent of tbe parties and without objection, it became a valid order in tbe cause. Weaver v. Hampton, 204 N. C., 42, 167 S. E., 484; Morisey v. Swinson, 104 N. C., 555, 10 S. E., 754; Deaver v. Jones, supra.

Tbis order was not subject to review at a subsequent term of court. Caldwell v. Caldwell, 189 N. C., 805, 128 S. E., 329; Phillips v. Ray, 190 N. C., 152, 129 S. E., 177; Dockery v. Fairbanks, 172 N. C., 529, 90 S. E., 501; S. v. Lea, 203 N. C., 316, 166 S. E., 292. It was error, therefore, for tbe court to strike it out ex mero motu, or to disregard it. Tbe remaining exceptions are not considered.

New trial.