Robinson v. . Johnson

Walker, J., after stating the case: Plaintiffs bave clearly waived their constitutional right to the trial of the issues in the case by a jury, as they failed to except to the referee’s report, and did not tender any issues at all, not even on the defendant’s exceptions. This was really tantamount to an agreement on their part tbat the judge should pass upon the defendant’s exceptions without a jury. Numerous cases support the view tbat there was a clear waiver of trial by jury. It was held in Driller Co. v. Worth, 117 N. C., 515: “1. A party cannot be deprived of tbe right to a trial by jury, except by bis own consent. “2. Tbe right to a jury trial may be waived by failure of a party to appear, or by tbe written agreement of himself or bis attorney, or by oral consent entered on tbe minutes of tbe court, or by submission to a reference. “3. Where an action is once referred by agreement, tbe order of reference cannot be annulled, except by tbe consent of all parties. “4. Failure to object to an order of reference at tbe time it is made is a waiver of tbe right to a trial by jury. “5. Although a party has bis objection to a coippulsory reference entered in apt time, be may waive bis right to a trial by jury by failing to asert it definitely and specifically in each exception to tbe referee’s report. “6. Where there was a compulsory reference objected to by defendants, and tbe referee filed fourteen findings of fact, some of which related to questions not in issue under tbe pleadings, and defendants filed exceptions to tbe findings, a demand at tbe end of tbeir exceptions for a jury trial on all tbe issues raised thereby was too general to entitle tbem to such a trial.” *234 And it was held in a subsequent appeal in the same case (118 N. C., 746) that “although, in ease of a compulsory reference, a party may in apt time reserve his constitutional right to a trial by jury at every stage of the proceeding, yet he may waive it by failing to set forth in his exceptions to the referee’s report a specific demand for the trial of the precise issue of fact raised by the pleadings and passed upon by the referee in the finding to which exception was taken.” These cases have frequently been approvel and affirmed. Ogden v. Land Co., 146 N. C., 443; Simpson v. Scronce, 152 N. C., 594; Mirror Co. v. Casualty Co., 153 N. C., 373, where the cases are collected; and the recent case of Alley v. Rogers, 170 N. C., 538, where the Court says: “It has been frequently held that although a' party duly enters his objection to a compulsory reference, he may waive it by failing to assert such right definitely and specifically in each exception to the referee’s report, and by failing to file the proper issues. Driller Co. v. Worth, 117 N. C., 515, and cases in annotated edition; Keerl v. Hays, 166 N. C., 553.” The plaintiffs filed certain exceptions to the rulings of the judge upon defendant’s exceptions to the report of the referee, but they, or the most of them, are really addressed to the findings of fact by the judge, and we have often held that we will not review such findings, when based upon evidence. Cotton Mills v. Cotton Mills, 115 N. C., 475; Harris v. Smith, 144 N. C., 439; Frey v. Lumber Co., ib., 759; Williamson v. Bitting, 159 N. C., 321; McCullers v. Cheatham, 163 N. C., 61; French v. Richardson, 167 N. C., 41. The facts as to the sale of the land and other property of the defendants, and the amount bid for them, are not material now, as the judge has found what amount is due on the mortgage debt, and the plaintiffs can redeem by paying it and the costs. They are not prejudiced by a failure to consider the amount which was bid for this property at the sales, if there has been any such failure. The remaining exceptions, which we have fully examined in connection with the findings of fact, are without merit, even if they are sufficiently presented and discussed in the defendant’s brief. The learned judge who presided at the hearing of the exceptions appears to have given the case careful study, and to have reached the right conclusion. Affirmed.