Ziblin v. . Long

*236 Clark, C. J. This appeal presents the single question whether the court ruled correctly in refusing to submit the case to the jury u}:>on defendant’s exception to the report of the referee. This case is almost identical, on this point, with Ogden v. Land Co., 146 N. C., 443, where it is said: “As each .exception was made, the defendants merely stated that as to the matters and issues embraced in said finding they and each of them demand a jury trial. The defendants did not specify the particular fact controverted upon which they think an issue should be submitted to the jury, nor do they formally tender an issue upon each finding of fact against them to which they excepted.” In the same case the Court further said that the appellant had waived the right to a trial by jury “by not pointing out the questions or issues of fact raised by the exceptions and presenting such issue as they deem necessary to cover all the controverted facts,” citing Driller Co. v. Worth, 117 N. C., 515, which is the leading case on the subject, and Simpson v. Scronce, 152 N. C., 594. In the present case, as in those, there was a compulsory reference, excepted to when made, but upon the coming in of the report the'defendant merely excepted to each of the four findings of fact and said: “Therefore, the defendant demands a jury trial of the said finding of fact.” It was held in Driller Co. v. Worth, supra, which has been often cited since (see Anno. Ed.), that this was insufficient and that it is a “reasonable requirement that the demand for a iury trial should be deemed waived if not- made by specific exception and limited to the points upon which there has been a joinder in the pleadings”; that is, the appellant is required not. merely to point out the findings of fact of the referee excepted to (which merely presents such findings for review by the judge and upon which the ruling of the judge is final, if there is any evidence), but the party excepting must go further, in order to preserve his right to a trial by jury, by formulating the issues raised by the pleadings and presenting them with his demand for a trial by jury of such issues. This the defendant did not do. Even when there is no compulsory reference the appellant must formulate and tender issues. The judgment of the court below is Affirmed.