Shute v. Fisher

154 S.E.2d 75 (1967) 270 N.C. 247

J. Kirk SHUTE
v.
Manuel FISHER and wife, Shirley D. Fisher.

No. 519.

Supreme Court of North Carolina.

May 3, 1967.

Haynes, Graham, Bernstein & Baucom, by Mark R. Bernstein, Charlotte, for defendant appellants.

Carswell & Justice, Charlotte, and Richardson & Dawkins, by Koy E. Dawkins, Monroe, for plaintiff appellee.

PLESS, Justice.

G.S. § 1-189 provides in part:

"Where the parties do not consent, the court may, upon the application of either, or of its own motion, direct a reference in the following cases:

"1. Where the trial of an issue of fact requires the examination of a long account on either side; in which case the referee may be directed to hear and decide the whole issue, or to report upon any specific question of fact involved therein."

While the order of reference is not in the exact language of the statute, an examination of it shows that the facts to be determined by the Referee require the the examination of a long account involving the books and records of the National Business Music Company; numerous calculations of interest; an examination of numerous exhibits, and the determination of the fair value of the stock of National Business Music Company. To hear evidence relating to these subjects would, in our opinion, be the equivalent of "the examination of a long account" which would justify the order of reference. It has been held that in ordering a reference, the exact words of the statute are not required. Vaughan v. Lewellyn, 94 N.C. 472; Morisey v. Swinson, 104 N.C. 555, 10 S.E. 754.

Our decisions hold that the right of a party to move for compulsory reference is waived unless made before the jury has been empaneled. Peyton v. Hamilton-Brown Shoe Co., 167 N.C. 280, 83 S.E. 487. This reference, however, was ordered by the court of its own motion—not upon the motion of one of the parties.

The statute distinctly provides that the court on its own motion may direct a reference in proper cases. We are quite sure that if, at the end of three days spent on this case and requiring 122 pages of transcript, Judge Brock could see any likelihood of completing the jury trial within a reasonable time or that it could be properly tried by a jury, he would not have ordered it referred. This he did, in his discretion, and we find nothing in the record that indicates that his order was improper or constitutes an abuse of discretion.

Both parties excepted to the order of reference, but in his brief the plaintiff says that "a reference is proper in this cause." It is not unusual for both parties to informally suggest an order of reference and yet ask to be allowed to make formal objections to the order so that the right to a jury trial may be preserved. We assume that was the reason for the plaintiff's exception.

The defendants further except to the alleged failure of the court to observe the provisions of G.S. § 1-190 in the appointment of a referee. That statute provides that the parties may agree in writing upon a person to act as referee and that that person must thereupon be named by the court in that capacity. Here there was no such agreement, and the court thereupon nominated and appointed Mr. Francis O. Clarkson, Jr., of the Mecklenburg County Bar, as referee. Only one of the parties objected to this appointment, so that it also is authorized by statute (G.S. § 1-190).

Our Court has consistently held that when the answer raises a plea in bar which, if established, would end the action, a compulsory order of reference cannot be properly ordered until such plea is decided. Bank of Tarboro v. Fidelity & Deposit Co., 126 N.C. 320, 35 S.E. 588; Solon Lodge v. Ionic Lodge, 245 N.C. 281, 95 S.E.2d 921.

The defendants claim that this principle of law was not observed in this case in that they have set up three defenses which they denominate as "pleas in bar." Summarized, they are: (1) that the American Bank and Trust Company, and not the plaintiff, is the real party in interest; (2) that defendants' endorsement of the note sued upon was obtained by fraud; and (3) that they are entitled to offset against any sums due on the note the alleged usury charged by the plaintiff in the transaction. There are many defenses which, if established, would defeat the plaintiff's cause of action, and thus produce the same result as a plea in bar. The latter has been defined as one which extends to the whole cause of action so as to defeat it absolutely and entirely, and which if found in favor of the pleader will put an end to the case, leaving nothing further to be determined. Grimes v. Beaufort County, 218 N.C. 164, 10 S.E.2d 640.

An absolute denial of indebtedness, lack of authority on the part of an agent, non-participation in a controverted incident, all if established would defeat a cause of action and put an end to the case, but these are not considered pleas in bar. They are defenses presented to avoid liability. We are of the opinion, and so hold, that the so-called pleas in bar do not require their determination before a reference could be ordered, but on the contrary, they are legitimate and proper questions to be answered by the referee upon the evidence presented.

It is impractical and would be almost impossible to have legislation or rules governing all questions that may arise on the trial of a case. Unexpected developments, especially in the field of procedure, frequently occur. When there is no statutory provision or well recognized rule applicable, the presiding judge is empowered to exercise his discretion in the interest of efficiency, practicality and justice. The able judge has done that in this case, and his order of compulsory reference and the appointment of a referee is hereby

Affirmed.

LAKE, Justice (dissenting).

I dissent from that portion of the majority opinion which holds the defendants' plea of fraud and its plea that the plaintiff is not the real party in interest are not pleas in bar. These should be heard and determined before the remainder of the controversy is referred. If the defendants prevail on either of these contentions, that will end the lawsuit and there will be no occasion for a long and expensive reference.