State Ex Rel. Klutts v. McKenzie ( 1871 )

We feel satisfied, from the manner in which this case is now brought up, that it cannot go off upon its merits.

The referees set out the evidence, but do not find the facts, and it is impossible to see the principles of law on which they base (103) their conclusions; seemingly, the results arrived at, is upon the idea of making a fair compromise.

His Honor does not find the facts distinctly, but leaves them to be inferred by reference to portions of the evidence, and the difference in the result, is so material, to-wit: near $10,000, as to cause this Court to hesitate, and decline to grope its way in the dark, for fear a decision upon the matter as now presented will not meet the merits of the case. Indeed it is impossible for us to come to any satisfactory conclusion in regard to it. The report of the referees will be set aside and the cause be remanded — to the end, that the referees may distinctly set out their conclusions, both as to the facts and the law — and that his Honor may review his conclusion in matters of law.

It was suggested on the argument that the parties would be entitled to have the facts passed on by a jury. We do not concur in that view. In a case involving complicated accounts, the mode of trial under the C.C.P., is by reference, and the proceeding is in analogy to a reference to the Clerk and Master in the old mode of Equity procedure, and his report is to be finally disposed of on exceptions. Otherwise, we shall let in all of the inconveniences that attended the old action of account, which caused it to be disused and its place to be taken by a bill in equity for an account, for, in that action, whenever an issue of fact was joined, the Auditor was obliged to return the case to Court, to have the issue passed on by a jury, and whenever there was an issue of law, he had to stop and take the opinion of the Judge, thus cause such delay and impediments to the administration of justice, as to induce the Chancellor to take jurisdiction in his Court of Equity, of matters of account, not because there was any peculiar equity involved, but on the express ground that the mode of trial in the Courts was defective and the merits of the case could not be reached by a jury trial. The C.C.P. does not intend to revive this antiquated and impracticable mode of trial in regard to matters of complicated (104) accounts. The mode adopted is by a reference to a referee, who gives his judgment on both facts and law, and then by the judgment of this Court on the questions of law.

This opinion will be certified and the cause be remanded without costs.

Per curiam.

Case remanded.

Cited: Keener v. Finger, 70 N.C. 43; Lovinier v. Pearce, 70 N.C. 171;Earp v. Richardson, 75 N.C. 85; Atkinson v. Whitehead, 77 N.C. 419; Grantv. Reese, 82 N.C. 74; Cooper v. Middleton, 94 N.C. 93; Carr v. Askew,94 N.C. 211; Battle v. Mayo, 102 N.C. 435; Driller Co. v. Worth,117 N.C. 519; Tucker v. Satterthwaite, 120 N.C. 121.