Burwell v. . Burgwyn

DEFENDANT'S APPEAL.

The facts in this case are sufficiently set out in the plaintiffs' appeal. Where, in an action, exceptions to the report of a referee are overruled, and, upon appeal to this Court, the judgment is affirmed, such exceptions cannot be reviewed, nor the matter to which they refer be further contested in the course of the reference in other respects. Such matters are thus settled, and cannot be disturbed, except as they may be affected, incidently [incidentally], by some order or judgment of the Court in the course of the action.

When this case was before this Court by a former appeal (Burwell v.Burgwyn, 100 N.C. 389), we sustained the principal exception of the feme plaintiff, the present appellant, and, as to her other exceptions, said: "The other exceptions are untenable, and we sustain the action of the Court in overruling them." Thus, the judgment of the Court below, overruling the exceptions of the appellant, was affirmed, except in a single respect, and the report was not open to further exception, other than as to that sustained.

The exceptions 1, 2, 3, 6, 9, embraced by the present (508) assignment of error, refer to matters in controversy so settled by the first report and former appeal, and their purpose is, in effect, to re-open the report, to some extent, as to such matters. The affidavit offered and rejected, was intended to be in aid of such purpose. The report itself supplied sufficiently the data and information suggested by it. The Court, therefore, properly declined to receive the affidavit, and overruled the exceptions.

We have examined the other exceptions of the appellant, and are of opinion that they are not well founded, and hence affirm the judgment of the Court overruling them.

The judgment, in the respects appealed from by the appellant, must be affirmed. Affirmed.