Cummings v. . Swepson

EaiRgi.oti-i, 0. J'. Tbis action was referred by consent, and on tbe trial day tbe plaintiff made affidavit tbat be could not try, stating bis reasons. Tbe referee required bim to proceed to trial, and tbe plaintiff’s counsel stated tbat in justice to his client be was driven to consent to a nonsuit. Tbe referee filed bis report, and tbe defendant made a motion tbat judgment of nonsuit be entered by bis Honor, which was refused. His Honor, upon tbe facts found in tbe exercise of bis discretion, ordered tbat tbe plaintiff be relieved from bis consent to nonsuit before tbe referee, and tbat the cause be remanded to tbe referee to proceed according to tbe original order. Defendant’s exception is tbat the Court bad no power to set aside tbe nonsuit entered before tbe referee, and relies upon Boyden v. Williams, 80 N. C., 95, and Twitty v. Logan, 86 N. C., 112. Each of those cases involved a question of excusable neglect in allowing judgments to be entered at a term of tbe Court. Tbe law of those cases has no application to tbe facts in tbe present case. It is a first principle tbat tbe law must fit tbe facts. Tbe powers and duties of a referee are found in Tbe Code, Section 422, and Jones v. Beaman, 117 N. C., 259. The Code, Section 423, provides tbat tbe referee shall make bis report to tbe Court in which tbe action is pending, and “either party may move tbe judge to review such report and set aside, modify or confirm tbe same in whole or in part, and no judg- *585 meat shall be entered on any reference except by order of the judge.” In Boushev v. Surles, 79 N. C., 51, it was held not to be error when the judge in his discretion sets aside the reference after the report was filed, and proceeded and tried the case. See also Earp v. Richardson, 75 N. C., 84. Upon Section 423 of The Code, and these authorities, we can have no doubt of the power of the Judge to make the orders set out in the record, and above stated. The Court retains the causo and its jurisdiction in every case of reference, with power to review and reverse the conclusions of law of the referee, and a discretion to modify or set aside the report, and his ruling in the latter respect is not reviewable unless it appears that such discretion has been abused. Affirmed. •