McNeill v. . Lawton

*19 Merrimon, J., (after stating the facts). It is true, as contended by the counsel of the appellant, that the record and recitals therein must prevail, when these are inconsistent and in conflict with statements in the case stated or settled upon appeal by the Court. Farmer v. Williams, 75 N. C., 401; State v. Keeter, 80 N. C., 472. But we do not find such inconsistency in this case. The proceedings in the course of the action appear disorderly, but the pleadings all appear, and their nature and what is stated in them, indicate the proper order of them. Nor does the record note the consent of the parties in respect to the filing of the pleadings subsequent to the complaint. There is, however, nothing appearing in it inconsistent with the case settled, and the statements of facts therein as to the order of the proceedings, must be accepted as true. It had been better, if the Court had required the record to be put in order — indeed, it ought to have done so. The view suggested by counsel, that the consent reference in an action, as allowed by the statute, (The Code, §420,) places the action pending the reference, or at all, beyond the control of the Court, is unfounded. The action is not referred — it continues pending in the Court, and all proper motions may be made in it, not inconsistent with the reference and course of procedure therein, as prescribed by the same statute. (The Code, §422). The reference is for the trial of issues of fact or law, or both, accordingly as its terms may provide. The jurisdiction is that of the Court, not that of the referee; he, by the written consent of the parties, becomes a mere adjunct of, and acts in the place of the Court, or of the Court and jury, in respect to the trial. What he does is ancillary to the authority of the Court in the action. He must make report of his proceedings and action, and his report, unless excepted or objected to in the way prescribed, stands as the decision of the Court, and upon application to the Judge, he may enter *20 judgment upon the same. There is no reason why the plaintiff may not abandon his action, and voluntarily submit to a judgment of nonsuit, as it is called, pending the reference. When he thus goes out of Court, the action and all proceedings therein, including the reference, are at an end, except in the cases and as explained below. Generally, a plaintiff may abandon his action and voluntarily submit to a judgment of nonsuit, at any time after bringing his action, and before the verdict of a jury, or what is tantamount to it; Bank v. Stewart, 93 N. C., 402, and the cases there cited. He cannot do so. however, under the present method of civil procedure, if the defendant has pleaded a counter-claim —a cause of action arising out of the contract or transaction set forth in the complaint as the grounds of the plaintiff’s cause of action. In such case, it is reasonable and just that the rights of the parties arising out of such contract or transaction shall be settled at the same time and in the same action, and that one party shall not be allowed to abandon the action without the consent of the other, until this shall be done. The plaintiff cannot justly complain if he is detained in Court until the whole merits of his cause of action are tried, and the rights of the defendant growing out of the same are settled, if the latter shall so desire. Whedbee v. Leggett, 92 N. C., 469. It is otherwise when the counter-claim is a cause of action arising independently of that alleged in the complaint, such as that allowed by the statute, (The Code, §244, par. 2). In that case, the plaintiff may submit to a voluntary nonsuit as to his own cause of action, but he cannot, by doing so, put ■ an end to the defendant’s right to litigate his counter-claim. The action continues for that purpose, unless the defendant shall see fit to withdraw his counter-claim, and • thus abandon the action with which he has become identified, as seek *21 ing redress from the plaintiff, who becomes practically a defendant, while the defendant becomes a plaintiff in the action thus prolonged. Whedbee v. Leggett, supra. Now, in the present action the defendant pleaded a co%mter-tlaim arising out of the contract and transaction alleged in the complaint, as the foundation of the plaintiffs’ claim. It-is therefore obvious, that they were not entitled to submit to a voluntary nonsuit. The defendant has the right to detain them in Court until her alleged rights, growing out of the plaintiffs’ alleged cause of action, shall be settled and determined. There is no error. Let this opinion be certified to the Superior Court, to the end that further proceedings may be had in the action there, according to law. It is so ordered. No error. Affirmed.