Bartlett v. Hopkins , 235 N.C. 165 ( 1952 )

69 S.E.2d 236 (1952) 235 N.C. 165

BARTLETT
v.
HOPKINS.

No. 25.

Supreme Court of North Carolina.

February 27, 1952.

John H. Hall, Elizabeth City, for plaintiff, appellant.

J. Henry LeRoy, Elizabeth City, for defendant, appellee.

ERVIN, Justice.

The Constitution of North Carolina guarantees to every litigant the right of trial by jury in controversies at law respecting property. Art. I, sec. 19. But such right can be waived. Art. IV, sec. 13.

Under the code of civil procedure, the court has discretionary power to order a compulsory reference in any case falling within the purview of the statute now codified as G.S. § 1-189. Veazey v. City of Durham, 231 N.C. 354, 57 S.E.2d 375. Such reference does not deprive a litigant of his constitutional right to have the issues of fact raised by the pleadings and the evidence offered in support thereof determined by a jury if proper steps are taken to preserve such right. Cherry v. Andrews, 229 N.C. 333, 49 S.E.2d 641; Chesson v. Kieckhefer Container Co., 223 N.C. 378, 26 S.E.2d 904; Brown v. Broadhurst, 197 S.E. 738, 150 S.E. 355; Brown v. Buchanan, 194 N.C. 675, 140 S.E. 749; Bradshaw v. Hilton Lumber Co., 172 N. C. 219, 90 S.E. 146; Yelverton v. Coley, 101 N.C. 248, 7 S.E. 672; Carr v. Askew, 94 N.C. 194. But a party to a compulsory reference waives his right to a jury trial by failing to take the proper steps to save it. Cheshire v. First Presbyterian Church, 225 N.C. 165, 33 S.E.2d 866; Baker v. J. J. Edwards & Son, 176 N.C. 229, 97 S.E. 16; Robinson v. Johnson, 174 N.C. 232, 93 S. E. 743; Vaughan-Robertson Drug Co. v. Grimes-Mills Drug Co., 173 N.C. 502, 92 S.E. 376.

In order to preserve his right to a jury trial in a compulsory reference where the referee's report is adverse to him, a party must comply with each of these procedural requirements:

1. He must object to the order of compulsory reference at the time it is made. Brown v. E. H. Clement Co., 217 N.C. 47, 6 S.E.2d 842; Booker v. Town of Highlands, 198 N.C. 282, 151 S.E. 635; American Trust Co. v. Jenkins, 196 N.C. 428, 146 S.E. 68; Story v. Truitt, 193 N.C. 851, 138 S.E. 121; Vaughan-Robertson Drug Co. v. Grimes-Mills Drug Co., supra; Wynn v. Bullock, 154 N.C. 382, 70 S.E. 637; Roughton v. Sawyer, 144 N.C. 766, 56 S.E. 480; Belvin v. Raleigh Paper Co., 123 N.C. 138, 31 S.E. 655; Keystone Driller Co. v. Worth, 117 N.C. 515, 23 S.E. 427; Id., 118 N.C. 746, 24 S.E. 517; Grant v. Hughes, 96 N.C. 177, 2 S.E. 339, 346.

2. He must file specific exceptions to particular findings of fact made by the referee within thirty days after the referee delivers his report to the clerk of the court in which the action is pending. G.S. § 1-195; Brown v. E. H. Clement Co., supra; Booker v. Town of Highlands, supra; Wilson v. Featherstone, 120 N.C. 446, 27 S.E. 124.

3. He must formulate appropriate issues of fact raised by the pleadings and based on the facts pointed out in his exceptions, and tender such issues with his exceptions to the referee's report. Simmons v. Lee, 230 N.C. 216, 53 S.E.2d 79; Cheshire v. First Presbyterian Church, supra; Brown v. E. H. Clement Co., supra; Atlantic Joint Stock Land Bank v. Fisher, 206 N.C. 412, 173 S.E. 907; Marshville Cotton Mills v. Maslin, 200 N.C. 328, 156 S.E. 484; Booker v. Town of Highlands, supra; Burroughs v. Umstead, 193 N.C. 842, 137 S.E. 581; Jenkins v. Parker, 192 N.C. 188, 134 S.E. 419; Ziblin v. Long, 173 N.C. 235, 91 S.E. 837; Alley v. Rogers, 170 N. C. 538, 87 S.E. 326; Keerl v. Hayes, 166 N.C. 553, 82 S.E. 861; Simpson v. Scronce, 152 N.C. 594, 67 S.E. 1060; Taylor v. Smith, 118 N.C. 127, 24 S.E. 792.

4. He must set forth in his exceptions to the referee's report a definite demand for a jury trial on each issue so tendered. Brown v. E. H. Clement Co., supra; Texas Co. v. Phillips, 206 N.C. 355, 174 S.E. 115; Marshville Cotton Mills v. Maslin, supra; Booker v. Town of Highlands, supra; Ziblin v. Long, supra; Alley v. Rogers, supra; Lexington Mirror Co., v. Philadelphia Casualty Co., 153 N.C. 373, 69 S.E. 261; Ogden v. Appalachian Land & Lumber Co., 146 N.C. 443, 59 S.E. 1027; Roughton v. Sawyer, supra; Keystone Driller Co. v. Worth, supra.

Since he made no demand in his exceptions to the referee's report for a jury trial on the issues tendered by him, the defendant waived his constitutional right to have a jury determine the controverted issues of fact. In consequence, the trial judge committed error in adjudging that the defendant had preserved his right of trial by jury, and in refusing on that ground to pass upon the exceptions to the referee's findings of fact himself.

Although the trial judge advised the jury in earlier portions of his charge that it should try the case according to the law and the facts, he ended his instructions to the jury with this emphatic statement: "Gentlemen of the jury, it is your province and your privilege and your prerogative to answer both issues ``nothing'".

The plaintiff's exception to this instruction must be sustained. An ancient legal maxim asserts that "a verdict is, as it were, the saying of the truth, as the judgment is the saying of the law." A verdict is supposed to be, and ought to be, a declaration of the truth as to the issues of fact submitted to the jury. Mars v. State, 163 Ga. 43, 135 S.E. 410; Groves v. State, 162 Ga. 161, 132 S.E. 769; Anthony v. Anthony, 103 Ga. 250, 29 S.E. 923; Wright v. Illinois & Mississippi Tel. Co., 20 Iowa 195; State v. Blue, 134 La. 561, 64 So. 411; State v. Forrester, 14 N.D. 335, 103 N.W. 625; Vaughan v. Cade, 2 Rich. 49, 31 S.C.Law 49; Clark v. State, 170 Tenn. 494, 97 S.W.2d 644; McBean v. State, 83 Wis. 206, 53 N.W. 497; Shenners v. West Side Street R. Co., 78 Wis. 382, 47 N.W. 622. The instruction under scrutiny gave the jury to understand that it had the arbitrary power to answer both issues "nothing," irrespective of whether it thereby pronounced the truth.

The trial judge submitted the issues to the jury because of his erroneous view that the defendant had duly preserved his right to such mode of trial. The verdict and judgment are set aside, and the cause is remanded to the Superior Court to the end that the judge may review the defendant's exceptions to the referee's report in conformity with the procedure which obtains in references where trial by jury is waived. Smith v. Hicks, 108 N.C. 248, 12 S.E. 1035.

Error.