Maxwell v. Maxwell, 70 N.C. 267 (1874)

Jan. 1874 · Supreme Court of North Carolina
70 N.C. 267
JOHN S. MAXWELL, Adm'r v. THOS. T. MAXWELL and others

JOHN S. MAXWELL, Adm’r v. THOS. T. MAXWELL and others.

The entries on the record, that certain exceptions were to he “passed upon by the Court as of this term, followed by the judgment of the Court are conclusive of the waiver of a jury trial by the parties and cannot be impeached.

Civil actioN, remanded from this Court at June Term, 1872, 67 N. C. Rep. 383, to the Superior Court of Davie county, where it was tried by Cloud, J., at Spring Term, 1873.

From the judgment rendered by his Honor, the defendants appealed.

All the facts necessary to an understanding of the decision of the Court will be found in the opinion of Justice Settle.

W. II. Bailey, for appellants.

Batchelor, Edwards dc Batchelor and Brown, contra.

Settle, J.

This ease was before us at June Term, 1872, and is reported in 67 N. C. Rep. 383. The judgment of the Superior Court, holding the reference to Price and Lunn to be at an end, being then reversed, the case was remanded, with directions to proceed according to law. The Court did proceed to find the facts and to declare the law thereon ; but the defendants insist that they have never waived a jury trial, and that his Honor was not authorized to find the facts.

It appears from the record now before us, that at Spring Term, 1873, the plaintiff filed exceptions to the report of the said referees. And at the same term of the Court the following entries were made upon the record, “ Motion by defendants’ -counsel to confirm the report“ Exceptions to the report by plaintiffs’ counsel; to he passed on ly the Court as of this term.” And then comes the judgment of the Court, to wit: “ This action coming on for trial upon the complaint, answer of the defendant, report of the commissioners, Charles Price and B. F. Lunn, and the exceptions filed thereto by *268plaintiff and proofs taken, and the matters of fact having been agreed by the parties to be fried by the Court. and the matter being fully heard, and the proofs and pleadings considered and debated by counsel, the Court doth find,” &c.

These entries of record are conclusive of the waiver of a jury trial, and cannot be impeached.

Let it be certified that there is no error.

Per Oueiah. Judgment affirmed.