White v. . Utley

Smith, C. J., after stating the case. We interpret the successive orders of reference on the record of spring term, 1879, as intended to constitute a single reference, the second being .in effect but a change of referees, and thus far only modifying the provisions of the first. It seems to have been so recognised and acted upon as well by the referee as by the parties to the suit. While under the Code the consent necessary to a reference (§ 244) must be in writing, the order declaring the consent and entered of record is a sufficient compliance with the statutory demand, and indeed the highest, and conclusive form of proof of the fact. . If the record were not such evidence, the objection, now made for the first time, could not be entertained after what has occurred, and will be deemed to have been waived, as is held in Johnston v. Haynes, 68 N. C., 509. As the consent extends not only to the terms of the reference but to the person of the referee, he, as selected by the parties, must remain in the discharge of its duties, unless with like consent another is substituted in his place, until the order has been fully executed and the final report made. Perry v. Tupper, 77 N. C., 413; Flemming v. Roberts, Ib., 415. In the case last cited, in answer to the objection that the second reference was compulsory, the court say: “ The first reference was by the express consent of both parties, and that assent continued and could not be revoked, until the order of reference was complied with by a full report.” The court considering the report defective, in that, it fails to dispose of the issues raised in the answer, as to the administration of the trusts of the mortgage which the referee declined to inquire into, for the reason that he deemed *418 those dealings concluded and settled by the execution of the notes, directs a further reference to an appointee of its own, to report upon these omitted matters at a future day. We think there was irregularity in thus proceeding to pass upon the facts presented in an unfinished reference, and deciding the respective rights of the parties in relation thereto, and that His Honor should have deferred his judgment until all the evidence and the referee’s findings are reported, and his adjudication would dispose of the whole controversy. The inconveniences of a partial adjudication, followed by an appeal, and this from time to time repeated so as to present for review successively fragments of the case instead of the case in its entirety, are numerous and inconsistent with the system of practice which aims to bring litigation, without needless delay and expense, to a termination. As further information was required, His Honor should have suspended his judgment upon the exceptions until all the facts necessary to a complete determination of the cause were reported. The rulings predicated upon a partial report may here-after require modification or be wholly reversed, upon further evidence, and this could not be, if we undertake to decide them upon this appeal. The rulings of His Honor upon the exceptions were premature and must be set aside, so as not to prejudice a future adjudication upon the merits, and the order of reference corrected by directing it to the referee chosen by the parties, unless they consent to the substitution of another in his stead. Let this be certified to the court below. Error. Reversed.