Stevenson v. . Felton

Davis, J., (after stating the case). Section 420 of The Code provides that “ all or any of the issues in the action, whether of fact or of law, or both, may be referred upon the written consent of the parties, except in actions to annul a marriage or for divorce and separation.” This action does not come within either of the exceptions. It was referred “ by consent ” in writing, signed by the counsel of plaintiffs and defendants, and there is nothing in the character of the action or of the issues involved to invalidate the reference. We are not aware of any case in which a reference under The Code was held to be improper because •questions of fraud might be involved. Many such references have been made and questions of fraud passed upon by the referee without objection on that account, and notably the case of Young v. Lathrop, 67 N. C., 63, cited by counsel. If objected that the reference was by the “ written consent” •of counsel and not of the parties, it is fully met by Morris v. Grier, 76 N. C., 410, and the cases there cited, in which it is said “ it is believed to be the practice throughout the union *61 for suits to be referred by consent of counsel without special authority.” Parties litigant have the constitutional right (Art. IV, § 13 of the Constitution,) to waive trial of issues of fact by a jury, and when, by consent, they have waived a trial by jury and selected another mode of trial (and a reference by consent is such a waiver) neither party can afterwards demand a jury trial as a matter of right, nor has the Judge the power, at his discretion and against the will of either party, to set aside, or strike out, or discontinue an order of reference entered by the written consent of the parties. An order of reference once properly made by the written consent of the parties cannot be revoked or vacated at the instance of one. Either party has a right to have the order carried into effect and complied with by a full report of the referee, and further action by the Court can only be had upon such report. Perry v. Tupper, 77 N. C., 413; Flemming v. Roberts, 77 N. C., 415; White v. Utley, 86 N. C., 415; McEachern v. Kerchner, 90 N. C., 177; Harris v. Shaffer, 92 N. C., 30; and many similar cases. The Court below erred in declining to hear and pass upon the exceptions filed to the report of the referee and in striking out the order of reference and directing that issues be formulated to be submitted to the jury. The report of the referee and the exceptions thereto are not now properly before us. The appeal, though not from a final judgment, was from a ruling affecting the substantial rights of the parties, and is clearly within the principle laid down in Grant v. Reese, 82 N. C., 72. There is error, and this must be certified to the end that the cause may be properly proceeded with below. Error.