Franklin v. Crossnore School

Civil action for alleged breach of contract.

The action was instituted 26 July, 1935, pleadings filed, order of reference entered at April Term, 1936, matter heard before the referee, report duly made, and exceptions thereto filed, judgment on the report and appeal to the Supreme Court at the Fall Term, 1937, when and where, upon motion of defendants, a new trial was ordered on account of newly discovered evidence.

At the October Term, 1937, of Avery Superior Court the defendants tendered judgment on the certificate of the Superior Court, cancelling the former judgment and directing the referee, previously appointed, to proceed to hear the matter anew and to report his findings, together with his conclusions of law. The court declined to sign this order and, in its stead, entered judgment annulling the former judgment and restoring the cause to the docket for trial. Defendants appeal, assigning errors. It does not appear from the judgment entered at the October Term, 1937, Avery Superior Court, how the new trial is to be had, whether by reference, the judge, or the jury. There was no error in declining to sign the order tendered by defendants, for in the original order of reference the parties "merely waived the right to a jury trial" and did not agree upon the referee. Indeed it is stipulated in the order that in case of "an appeal by either party" from the report of the referee the judge shall "hear the facts in the same manner as the jury," and shall "have the right to find the facts in their entirety, . . . all of which shall be subject to the approval of the trial judge at the time." Whether this order, which contains several unusual provisions (In re Snelgrove, 208 N.C. 670,182 S.E. 335), still subsists as a valid order in the cause was not determined in the court below. Edwards v. Perry, 206 N.C. 474,174 S.E. 285; 20 Rawle C. L., 323.

The question debated on argument and in brief, i.e., whether interlocutory orders, entered without objection or by consent, are vacated when a new trial is granted for newly discovered evidence is not before us for decision. It is conceded that the final judgment and the verdict or findings upon which it rests are ex necessitate set aside by the order. 20 Rawle C. L., 317.

The appeal is premature and must be dismissed.

Appeal dismissed.