Veazey v. City of Durham, 231 N.C. 354 (1950)

Feb. 3, 1950 · Supreme Court of North Carolina
231 N.C. 354


(Filed 3 February, 1950.)

1. Appeal and Error § 2—

An interlocutory order or judgment is not appealable unless it is a judicial decision affecting a substantial right claimed in the action or proceeding. C.S. 1-277.

2. Reference § 3—

Tbe court bas discretionary power to grant or refuse a reference in those cases coming within the compulsory reference statute, and while movant has the right to insist that the judge exercise his discretionary power and act on the motion, he has no legal right to demand that the court direct a reference. G.S. 1-189.

3. Appeal and Error § 2—

The discretionary refusal of a motion for a compulsory reference, even though the case comes within the compulsory reference statute, is not appealable.

*355Appeal by defendant from Nimocks, J., at tbe March Term, 1949, of Dubham.

Tbe complaint alleges, in brief, tbat tbe defendant, a municipality, constructed and maintained its drains and sewers in sucb manner as to constitute a nuisance, and thereby caused substantial injury to tbe plaintiff’s farm. It prays for damages and injunctions to abate tbe nuisance. Tbe answer denies liability and pleads various defenses.

Tbe defendant filed a motion asserting tbat tbe action was embraced within subsections 2, 3, and 5 of Gr.S. 1-189, and asking tbat tbe court direct a compulsory reference in it and 18 -other somewhat similar cases brought against tbe defendant by other plaintiffs.

Tbe court refused tbe reference proposed by tbe defendant in an order assigning these specific reasons for its action: (1) “Tbat tbe ends of justice would not be promoted by the appointment of a referee, but tbat it is probable additional expense would be incurred and further probable delay in determining tbe issues of fact and questions of law involved by a reference”; and (2) “tbat plaintiff is entitled to a jury trial which, in tbe opinion of tbe court, will facilitate at less costs and expense to plaintiff and defendant a determination of tbe issues involved.”

Tbe defendant excepted to the order, and appealed. On tbe argument here, tbe plaintiff moved to dismiss tbe appeal on tbe ground tbat it is not authorized by law.

Victor S. Bryant and Robert I. Lipton for plaintiff, appellee.

Claude V. Jones and Egbert L. Haywood for defendant, appellant.

Ervin, J.

Tbe order refusing a reference shows on its face tbat tbe court denied tbe motion for a compulsory reference as a matter of discretion. This being so, the appeal necessarily proceeds on tbe assumption tbat the court should have granted a compulsory reference because tbe defendant was entitled to demand tbat mode of trial as a matter of right in tbe action at bar.

Tbe statute which controls tbe granting of compulsory references is embodied in G.S. 1-189. It provides tbat “where tbe parties do not consent, the court may, upon tbe application of either, or of its own motion, direct a reference” in certain enumerated classes or types of civil suits, among them being cases necessitating tbe taking of an account; cases involving a complicated question of boundary, or requiring a personal view of tbe premises; and cases “where tbe issues of fact and questions of fact arise in an action of which tbe courts of equity of tbe state bad exclusive jurisdiction prior to tbe adoption of tbe constitution of one thousand eight hundred and sixty-eight, and in which tbe matter *356or amount in dispute is not less than the sum or value of five hundred dollars.”

For the purpose of this particular decision, it is taken for granted without so adjudging that the instant case falls within each of the classes or types of actions just mentioned, and that by reason thereof the court had power under the statute to refer it.

The statute stipulates that “the court may . . . direct a reference” in certain classes or types of cases. It is manifest that the verb “may” is used in this connection in its ordinary sense as implying permissive, and not mandatory, action or conduct. Curlee v. Bank, 187 N.C. 119, 121 S.E. 194; Rector v. Rector, 186 N.C. 618, 120 S.E. 195. It thus appears that the directing or refusing of a compulsory reference in an action which the court has power to refer is a matter committed by the statute to the discretion of the court.

This conclusion finds support in our decisions. Delafield v. Construction Co., 118 N.C. 105, 24 S.E. 10; Fortune v. Watkins, 94 N.C. 304. Moreover, it harmonizes with the holdings in other jurisdictions. Brown v. Grove, 25 C.C.A. 644, 80 F. 564; Farmers’ Loan & Trust Co. v. Northern Pac. R. Co., 61 F. 546; United States v. Groome, 13 App. D. C. 460; Berkowitz v. Kiener Co., 37 Cal. App. 2d 419, 99 P. 2d 578; Hicks v. Atlanta Trust Co., 187 Ga. 623, 1 S.E. 2d 669; Mobley v. Faulk, 42 Ga. 314, 156 S.E. 40; Martin v. Foley, 82 Ga. 552, 9 S.E. 532; Harmon v. Martin, 395 Ill. 595, 71 N.E. 2d 74; Brignall v. Lewe, 383 Ill. 549, 50 N.E. 2d 577; Washington Nat. Bank v. Myers, 104 Kan. 526, 180 P. 268; Day Bros. Lumber Co. v. Daniel, 23 Ky. Law 285, 62 S.W. 866; Guinault v. Le Carpentier, 19 La. 239; Pierce v. Thompson, 23 Mass. (6 Pick.) 193; Stockman v. Michell, 6 Detroit Leg. N. 151, 120 Mich. 293, 79 N.W. 480; Buchanan v. Rechner, 333 Mo. 634, 62 S.W. 2d 1071; Couser v. Thayer (Mo. App.), 204 S.W. 27; Fitzgerald v. Hayward, 50 Mo. 516; Brennan v. Gale, 56 App. Div. 4, 67 N.Y.S. 382; Loverin v. Lenox Corp., 35 App. Div. 263, 54 N.Y.S. 724; Johnson v. Jones, 39 Okl. 323, 135 P. 12, 48 L.R.A. (N.S.) 547; Taylor v. Thompson, 213 S.C. 104, 48 S.E. 2d 648; Momeier v. John McAlister, Inc., 190 S.C. 529, 3 S.E. 2d 606; Farley v. Matthews, 168 S.C. 294, 167 S.E. 502; Peeples v. South Carolina Agr. Loan Ass’n, 156 S.C. 429, 153 S.E. 283; Bank of Timmonsville v. Peoples’ Bank, 147 S.C. 461, 145 S.E. 288; Peoples’ Bank of Hartsville v. Helms, 140 S.C. 107, 138 S.E. 622; Barnwell v. Marion, 58 S.C. 459, 36 S.E. 818; Farmers’ Mut. Ins. Ass'n v. Berry, 53 S.C. 129, 31 S.E. 53; Robson v. Jones, 33 Tex. 324; Poultry Producers’ Union v. Williams, 58 Wash. 64, 107 P. 1040, 137 Am. St. Rep. 1041; Poler v. Mitchell, 152 Wis. 583, 140 N.W. 330; Hart v. Godkin, 122 Wis. 646, 100 N.W. 1057.

*357This brings us to the question of the appealability of the order refusing to direct a compulsory reference. Under the statute, an interlocutory order or judgment of a Superior Court Judge is not reviewable by appeal unless it is a judicial decision affecting a substantial right claimed in the action or proceeding. G.S. 1-277.

The court had the discretionary power to direct a compulsory reference in the instant case. The appellant had the right, therefore, to insist that the judge exercise his discretion, i.e., that he choose between the granting and the refusing of the reference proposed by it. But the appellant’s right did not extend beyond that point. It could not demand as a legal right that the judge should do what it asked, i.e., direct the reference. For this reason, the order refusing the reference does not affect a substantial right of the appellant, and is not appealable. 4 C.J.S., Appeal and Error, section 129. See, also, in this connection: McIntosh on North Carolina Practice and Procedure in Civil Cases, section 676.

The defendant cites Royster v. Wright, 118 N.C. 152, 24 S.E. 746, and Jones v. Sugg, 136 N.C. 143, 48 S.E. 575, to sustain its claim that the order in controversy is appealable. The Royster and Jones cases and the present action are quite dissimilar. In each of those cases, the lower court erroneously construed the answer of the defendant to contain a plea in bar of the action asserted by the plaintiff, and denied the motion of the plaintiff for a compulsory reference as a matter of law on the legal ground that it had no discretionary power to direct such a reference on account of the undetermined plea in bar. In the instant case, however, Judge Nimocks rightly recognized that he had authority under the law either to grant or to refuse the compulsory reference proposed by the defendant, and he denied the motion of the defendant as a matter of discretion because he concluded that the ends of justice would be best promoted by an immediate trial before a jury. Nothing in the record suggests that Judge Nimocks abused his discretion in any way.

For the reasons given, the appeal must be dismissed.

Appeal dismissed.