Crowley v. McDougald , 241 N.C. 404 ( 1955 )

85 S.E.2d 377 (1955) 241 N.C. 404

Laura H. McDougald CROWLEY and her husband, W. A. Crowley,
v.
D. A. McDOUGALD and his wife, Mary V. McDougald.

No. 669.

Supreme Court of North Carolina.

January 14, 1955.

Robert H. Dye, Fayetteville, and Joe M. Cox, Laurinburg, for plaintiffs-appellants.

G. B. Rowland, Raeford, and Varser, McIntyre & Henry, Lumberton, for defendants-appellees.

JOHNSON, Justice.

The plaintiff's only exception is to the signing of the judgment. This is sufficient to present for review the question whether error of law appears upon the face of the record. Bond v. Bond, 235 N.C. 754, 71 S.E.2d 53.

The referee's report was filed April 5, 1954. The judgment below confirming the report was entered at the oneweek term of court which convened April 19, 1954, before expiration of the plaintiff's 30-day period for filing exceptions as allowed by statute, G.S. § 1-195. She insists that the record discloses no waiver of her right to file exceptions to the report any time during the 30-day period and that the premature entry of judgment of confirmation is error appearing upon the face of the record. This view is supported by the record. The plaintiff's action in moving for voluntary nonsuit does not preclude her from filing exceptions to the referee's report. True, any exceptions directed to the merits of the case would seem to be at variance with stipulations reported by the referee to have been entered into by the plaintiff at the hearing. However, the record on appeal does not contain any part of the transcript of the proceedings before the referee, and it has not been made to appear that the stipulations were reduced to writing and signed by the plaintiff or her counsel. Rather, upon the record as presented, the stipulations appear only in the findings of fact as formulated and reported by the referee. Therefore, on this record, it would seem that the stipulations as reported are subject to challenge by exception along with the referee's general findings and conclusions.

For the error indicated the judgment appealed from will be vacated and the cause will be remanded to the court below for further proceedings in accord with this opinion.

Error and remanded.