Texas Co. v. . Phillips

ClakksoN, J. We do not think tbat either one of tbe exceptions and assignments of error made by defendant can be sustained. As to tbe first: N. C. Code, 1931 (Micbie), sec. 573(1), is as follows: “Where tbe parties do not consent, tbe court may, upon tbe application of either, or of its own motion,.direct a reference in tbe following cases: (1) Where tbe trial of an issue of fact requires tbe examination of a long account on either side; in which case tbe referee may be directed to bear and decide tbe whole issue, or to report upon any specific question of fact involved therein.” Tbe pleading of plaintiff and tbe answer of tbe defendant, indicated “tbe examination of a long account on either side.” Tbe defendant set up no plea in bar. Lumber Co. v. Pemberton, 188 N. C., 532. In Bank v. Evans, 191 N. C., 535 (539), is tbe following: “It is generally agreed tbat tbe civil issue dockets of tbe State are .greatly congested by reason of tbe overwhelming increase in business incident to tbe progress and expansion of commercial and industrial activities, and for this reason, it is perhaps, not amiss to be reminded of tbe practical wisdom contained in an utterance by Faircloth, G. J., in Jones v. Bea- *358 man, 117 N. C., 259: ‘Our statutes relating to trials by referees serve a useful purpose, and must be liberally construed. They aid and simplify the work which would otherwise fall upon the court and jury, and often expedite the litigation and save the parties from trouble and expensive trials, and are a saving in time to witnesses and attorneys.’ ” Driller Co. v. Worth, 117 N. C., 515; Alley v. Rogers, 170 N. C., 538; Baker v. Edwards, 176 N. C., 229; Bank v. McCormick, 192 N. C., 42; Booker v. Highlands, 198 N. C., 282; Mfg. Co. v. Horn, 203 N. C., 732. As to the second: The defendant did not demand a jury trial upon the issues tendered, by not doing so, it is well settled that a trial by jury is waived. In Cotton Mills v. Maslin, 200 N. C., 328 (329), it is held: “A party who would preserve his right to a jury trial in a compulsory reference must object to the order of reference at the time it is made, and on the coming in of the report of the referee, if it be adverse, he should seasonably file exceptions to particular findings of fact made by the referee, tender appropriate issues based on the facts pointed out in the exceptions and raised by the pleadings, and demand a jury trial on each of the issues thus tendered. Wilson v. Featherstone, 120 N. C., 446, 27 S. E., 124; Yelverton v. Coley, 101 N. C., 248, 7 S. E., 672. This was not done in the instant case. Although a party may duly enter his objection to the order of reference, he may yet waive his right to a jury trial by failing to assert such right definitely and specifically in each exception to the referee’s report and by his failing to tender the proper issues. Alley v. Rogers, 170 N. C., 538.” It may be noted that the testimony taken before the referee is not in the record, C. S., 577. For the reasons given, the judgment of the court below must be Affirmed.