Maxwell v. . Maxwell , 70 N.C. 266 ( 1874 )

From the judgment rendered by his Honor, the defendants appealed.

All the facts necessary to an understanding of the decision of the Court will be found in the opinion of Justice SETTLE. This case was before us at June Term, 1872, and is reported in67 N.C. 383. The judgment of the Superior Court, holding the reference to Price and Lunn to be at an end, being then reversed, the case was remanded, with directions to proceed according to law. The Court did proceed to find the facts and to declare the law thereon; but the defendants insist that they have never waived a jury trial, and that his Honor was not authorized to find the facts.

It appears from the record now before us, that at Spring Term, 1873, the plaintiff filed exceptions to the report of the said referees. And at the same term of the Court the following entries were made upon the record, "Motion by defendants' counsel to confirm the report;" "Exceptions to the report by plaintiffs' counsel; to be passed on by the Courtas of this term." And then comes the judgment of the Court, to wit: "This action coming on for trial upon the complaint, answer of the defendant, report of the commissioners, Charles Price and B. F. Lunn, and the exceptions filed thereto by plaintiff and proofs taken, and thematters of fact having been agreed by the parties to be tried bythe Court, and the matter being fully heard, and the proofs and (268) pleadings considered and debated by counsel, the Court doth find," c.

These entries of record are conclusive of the waiver of a jury trial, and cannot be impeached.

Let it be certified that there is no error.

PER CURIAM. Judgment affirmed.