Leach v. Quinn

ScheNck, J. Having objected and excepted to the order of compulsory reference entered below, the defendants had the option to appeal at once or to wait final judgment to do so, to present the exception to the order duly preserved. Lumber Co. v. Pemberton, 188 N. C., 532, 125 S. E., 119. They have elected to pursue the former course. Hence, we now have presented in this Court the sole question as to whether there was error in making an order of compulsory reference without first determining the pleas in bar made in the answer to the allegations contained in the complaint. We are constrained to hold that the question posed must be answered in the affirmative. “It is well settled in this jurisdiction that a plea in bar will repel a motion for a compulsory reference, and no order of reference should be entered until the issue of fact raised by the plea is first determined, . . .” Grimes v. Beaufort County, 218 N. C., 164, 10 S. E. (2d), 640. “ ‘What constitutes a plea in bar has been considered and accurately defined by this Court in Bank v. Evans, 191 N. C.; 538, as follows: “In a legal sense it is a plea or peremptory exception of a defendant, sufficient to destroy the plaintiff’s action, a special plea constituting a sufficient answer to an action at law, and so called because it barred — i.e., prevented — the plaintiff from further prosecuting it with effect, and, if [30] established by proof, defeated and destroyed the action altogether.” Haywood County v. Welch, 209 N. C., 583; Jones v. Beaman, 117 N. C., 259.’ Preister v. Trust Co., 211 N. C., 51, 188 S. E., 622.” Lithographic Co. v. Mills, 222 N. C., 516, 23 S. E. (2d), 913. The pleas in bar contained in the defendants’ answer fall clearly within the definition here set forth. We do not concur in the position urged by the appellee, that this case falls within a possible exception to the general rule that a plea in bar should be first determined before an order of compulsory reference is made because a reference may divulge facts necessary for the proper decisions of the issues raised by the plea in bar. No facts necessary for the determination of the pleas in bar could be involved in the examination of the long account for which alone the order of reference was made. C. S., 573 (1). Reversed.