Simmons v. Lee

'WiNBORNE, J. While the record on this appeal discloses that defendant filed.numerous exceptions to the.findings of fact made by, and appearing in the report of, the referee, it fails to show any assignment of error based on exception to the findings of fact as made by the trial judge before whom the report of the referee came for consideration on the exceptions filed. Hence the exceptions to the findings of fact made by the referee are not presented on this appeal. Hughes v. Oliver, 228 N.C. 680, 47 S.E. 2d 6. .And the only assignment of error presented on the appeal is to the signing of the judgment from which the appeal is taken. Such assignment of error raises only the questions (1) as to whether the facts as found by the judge are sufficient to support the judgment, Vestal v. Machine Co., 219 N.C. 468, 14 S.E. 2d 427; Hylton v. Mt. Airy, 227 N.C. 622, 44 S.E. 2d 51; Smith v. Davis, 228 N.C. 172, 45 S.E. 2d 51; Artis v. Artis, 228 N.C. 754, 47 S.E. 2d 21; Russos v. Bailey, 228 N.C. 783, 47 S.E. 2d 22; Hardee v. Mitchell, 230 N.C. 40, 51 S.E. 2d 884, and numerous other cases; and (2) whether error in matters of law *221 appears upon tbe face of the record. Query v. Ins. Co., 218 N.C. 386, 11 S.E. 2d 139; Bader v. Coach Co., 225 N.C. 537, 35 S.E. 2d 609; Smith v. Smith, 226 N.C. 506, 39 S.E. 2d 391; Lea v. Bridgeman, 228 N.C. 565, 46 S.E. 2d 555. As to the first: That the findings of fact are sufficient to support the judgment is not debated in this Court. - But as to the second: Defendant contends that the judgment is erroneous in that it appears upon the face of it that the trial judge found as á fact and ruled as a matter 'of law that the exceptions filed by defendant to the report of the referee are “not in form and manner a compliance with the laws of North Carolina as in such cases made and provided, and not in accordance with the course and practice of the courts in respect to the filing of such exceptions.” The challenge to this ruling brings into focus this question: Has defendant preserved his right to a trial by jury? In this connection it is provided by statute in this State, G.S. 1-189, that compulsory reference, under the provisions of the statute, does not deprive either party of his constitutional right to a trial by jury of the issues of fact arising on the pleadings. But the right to trial by' jury in civil actions may be waived, Const, of N. C., Art. TV, Sec. 13. Chesson v. Container Co., 223 N.C. 378, 26 S.E. (2d) 904. And “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,” — Stacy, C. J., in the case, of Cotton Mills v. Maslin, 200 N.C. 328, 156 S.E. 484. See also Booker v. Highlands, 198 N.C. 282, 151 S.E. 635; Brown v. Clement Co., 217 N.C. 47, 6 S.E. 2d 842; Cheshire v. First Presbyterian Church, 225 N.C. 165, 33 S.E. 2d 866; Penland v. Church, 227 N.C. 699, 41 S.E. 2d 654; Cherry v. Andrews, 229 N.C. 333, 49 S.E. 2d 641, and numerous other cases. In Brown v. Clement Co., supra, on the subject of the requirements of the rule as to preserving right to trial by a jury in a compulsory reference case, Barnhill, J., speaking for the Court, had this to say: “Notwithstanding an order of reference, a determination of the issues of fact raised by the pleadings and the evidence in the case remains as the primary purpose. A jury trial does not extend to every finding of fact made by the referee and excepted to by the parties, but only to issues of fact raised by the pleadings and passed upon by the referee. McIntosh, See. 525. Questions of fact may not be substituted for issues merely because there is a controversy, as disclosed by the exceptions, as to what the facts are. McIntosh, Sec. 525 (4). Every fact found by the referee, if perti *222 nent, relevant and material, necessarily relates to one of the controverted issues of fact. Correctly interpreted, the rule simply requires the litigant, who seeks to preserve his right to trial by jury to tender issues raised by the pleadings based on the facts pointed out in the exceptions, and, as to each issue, to definitely and specifically demand a jury trial thereon, and, further, by specific reference, to relate the issue to his exceptions to the findings of fact which bear upon and relate to that particular issue.” Indeed, in the case of Cherry v. Andrews, supra, reference to the record on appeal there presents this manner of practical application of the rule so spelled out in Brown v. Clement Co., supra. There, for example, in stating exceptions, defendant again excepted to the order of reference, and to certain of the findings of fact and conclusions of law of the referee, and “upon the foregoing objections and exceptions to the referee’s report, the defendants tender the following issues and demand trial by jury on each objection and exception covered by the issues herewith submitted: 1. Are the plaintiffs the owners of, and entitled to the possession of lands lying East of a line . . . followed by the statement that “said issue is more particularly raised by the defendants’ exceptions Nos. 1, 2, 3, 4, 5 and 8,” and so on. When the present case is tested by the rule, as thus interpreted by this Court, it is seen that defendant objected to the order of reference at the time it was made, and on the coming in of the report of the referee, it being adverse, he filed exceptions to particular findings of fact made by the referee, and tendered issues he contends arise upon the pleadings, and demanded a jury trial thereon. But it is seen that the exceptions taken are not expressly related to any special issue, — as suggested in Brown v. Clement Co., supra. And the issues of fact submitted by defendant are not the issues arising on the pleadings. In this connection, where in a special proceeding under Chapter 38 of General Statutes, formerly C.S. 361 and 362, Revisal 325 and 326, Laws 1893, Chapter 22, to establish a boundary line, the defendant, by his answer, denies the petitioner’s title and pleads the twenty years’ adverse possession under G.S. 1-40, as a defense, the proceeding is assimilated to an action to quiet title and the Clerk, as directed by G.S. 1-399, formerly C.S. 158, Revisal 717, should “transfer the cause to the civil issue docket for trial during term upon all issues raised by pleadings,” in accordance with rules of practice applicable to such actions originally instituted in that court. Woody v. Fountain, 143 N.C. 66, 55 S.E. 425. See also Smith v. Johnson, 137 N.C. 43, 49 S.E. 62; Davis v. Wall, 142 N.C. 450, 55 S.E. 350; Brown v. Hutchinson, 155 N.C. 205, 71 S.E. 302; Hill v. Young, 217 N.C. 114, 6 S.E. 2d 830; Calaway v. Harris, 229 N.C. 117, 47 S.E. 2d 796; Roberts v. Sawyer, 229 N.C. 279, 49 S.E. 2d 468. *223 In such case the issues raised by the pleadings are (1) whether petitioners own the land described in his petition, and (2) as to the location of the land so described. In the present ease defendant did not tender issues pertinent thereto. Therefore he has waived his right to a trial by j-ury. But in any event, it would seem that in accordance with defendant’s claim asserted before the referee his plea of twenty years adverse possession is unavailing to him. The report of the referee indicates that defendant claims immediately under a deed from lia Lee, his wife, dated 18 April, 1944. And the referee finds that that deed conveyed no part of the land in dispute. In such case defendant, as grantee in that deed, would not be entitled to tack the adverse possession of his predecessor or predecessors in title as to a parcel of land not embraced within the description in his deed. See Boyce v. White, 227 N.C. 640, 44 S.E. 2d 49; Ramsey v. Ramsey, 229 N.C. 270, 49 S.E. 2d 476, and cases therein cited. For reasons hereinabove stated, no error is made to appear on this appeal, and, hence, the judgment below is Affirmed.