Page Trust Co. v. Pumpelly

Stacy, C. I. Tbe record in this case, wbicb was first bere at tbe Spring Term, 1926 (191 N. C., 675, 132 S. E., 594), is quite voluminous and contains more tban is necessary to a proper understanding of tbe appeal. Indeed, its diffuseness is somewhat confusing. Tbe immaterial matter, it is alleged, was inserted at tbe instance of tbe plaintiff. Tbe appellee, therefore, will be allowed to recover cost of mimeographing “not to exceed sixty pages for a transcript and twenty pages for a brief.” Eule 26, 192 N. C., p. 851. Tbe balance of tbe cost of mimeographing tbe record and briefs will be taxed against tbe plaintiff. Tbe first exception imputes error to the trial court in denying appellants’ motion for a jury trial on exceptions filed to tbe referee’s report and issues tendered thereon. Jenkins v. Parker, 192 N. C., 188, 134 S. E., 419; Baker v. Edwards, 176 N. C., 229, 97 S. E., 16. Tbe ruling might well be upheld on tbe ground that a jury trial was waived when tbe reference was ordered “on motion of Mrs. Amelie E. Pumpelly and tbe other parties to tbe action,” being as it was in effect at least, a consent reference. But outside of this tbe issues raised by tbe appellants are not sufficiently controverted to call for a jury trial (Bruce v. Nicholson. 109 N. C., 202, 13 S. E., 790), save perhaps tbe question of Mrs. Pumpelly’s individual liability on certain notes executed by her husband, but not by herself. As to these, tbe judgment will be modified so as to relieve her of any individual liability thereon. Tbe inclusion of these notes in the judgment against Mrs. Pumpelly was evidently an oversight on tbe part of tbe learned judge who beard tbe case in tbe Superior Court. Tbe plaintiff has asked for no judgment against her on these notes. She signed tbe mortgage given to secure tbe payment of said notes, but not tbe notes themselves. Tbe remaining exceptions are unsubstantial and call for no elaboration. They are not sustained. Let tbe judgment be modified as above indicated and, as thus modified, it will be upheld. Modified and affirmed.