Yelverton v. . Coley

Davis, J., (after stating the case.) It was admitted that the examination of a long account would be required in the trial of the action, and it was within the power of the Court, under § 421, subsec. 1 of The Code, to order a compulsory reference, but this compulsory reference could not deprive either party of his constitutional right to have the issues of fact arising on the pleadings tried by a jury, unless waived ; and a construction has been put upon section 421 which makes it harmonize with the constitutional right of trial by jury, by declaring that, although a compulsory reference may be ordered, yet when the report of the referee is made, and the material issues are eliminated by the exceptions thereto, “ the issues of fact thus joined by the pleadings, report and *250 exceptions, shall be submitted to the jury if demanded in apt time.” Atkinson v. Whitehead, 77 N. C., 418, and the cases there cited: The purpose of the reference is to facilitate the trial, and any exception to a finding of fact by the referee presents an issue which either party under a compulsory reference has a right to have passed upon by a jury. Currie v. McNeill, 83 N. C., 176, and cases cited. If this were not so, the tedious delay and confusion attending the investigation and examination of a long account by a jury, which it was the purpose of the reference to. avoid, would be as great after the reference as before, thus rendering the reference a mockery. Either party to a compulsory reference has a right, by definite and specific- exceptions, to have any issue of fact passed upon by the jury, but these exceptions must be definite, and present distinctly each finding of fact by the referee to which exception is taken, and they must be confined to such controverted facts as were passed upon or required to be passed upon by the referee. In this way every constitutional right of trial by jury is secured in perfect harmony with the provision in section 421 of The Code. Overby v. Fayetteville B. & L. Association, 81 N. C., 56; Carr v. Askew, 94 N. C., 194. Affirmed.