Patrick v. Richmond & Danville Railroad

Davis, J. (after stating the case.) Except in cases of compulsory reference, under § 421 of The Code, issues in an *604 action, whether of fact or of law, or both, can only be referred upon the written consent of the parties. The Code, § 420. The order of reference entered of record by consent of parties is a sufficient compliance with the statutory requirement in regard to the written consent. White v. Utley, 86 N. C., 415. The settlement of controversies by reference has always been regarded with favor, and while under the old practice the consent of the parties was essential to the making of the order, except in matters of account in actions against executors, administrators, guardians and Sheriffs or other officers, or in Courts of Equity, yet when once made it could not be annulled by the act of the parties. It might be revoked by operation of law; as for instance, the death of one of the parties; and the Court might rescind it as a matter of course by the wish and consent of the parties; but the Courts would not set aside orders of reference when once made by consent at the instance of one party against the wish of the other, unless for good and sufficient reason .shown. Tyson v. Robinson, 3 Ired., 333. In Perry v. Tupper, 77 N. C, 413, it was held that the Court could not, after a reference by consent, “ withdraw the trial of the controversy from the tribunal voluntarily selected by the parties without their mutual consent, except for good and sufficient cause assigned and made to appear to the Court.” It was said in that case: “The death of the referee would terminate the reference, and for a sufficient cause the Judge may do it, but not otherwise.” The Court had the power to strike out the order of reference for good and sufficient cause. Did the facts in the case before us warrant the exercise of such power? While the casé on appeal does not state sufficiently the findings of fact upon which the order of reference was stricken out, it sufficiently appears that John IT. Dillard and R. H. Battle successively declined to act, and we must con *605 sider the facts as thus found. The Court has no power to compel the referee to act, and “as the consent extends not only to the terms of the reference, but to the person of the referee,” (White v. Utley, supra) it has no power, without consent, to substitute other referees. This being so, if the Court had no power to set aside the order of reference, a trial might be defeated entirely, and we think the facts warranted his Honor in setting aside the order of reference. Affirmed.