Vail v. Smith

162 S.E.2d 78 (1968) 1 N.C. App. 498

Sally M. VAIL, Helen V. Rouse, Margaret V. Campbell, Evelyn V. Coonrad, Doris V. Yelverton and Luther H. Vail, Jr.
v.
Mattie P. SMITH.

No. 68SC126.

Court of Appeals of North Carolina.

July 10, 1968.

Futrelle & Baddour, by R. H. Futrelle, Goldsboro, for defendant appellant.

Dees, Dees, Smith & Powell, by William W. Smith, Goldsboro, for plaintiffs appellees.

MORRIS, Judge.

Defendant contends the court erred in failing to grant her motion for judgment on the referee's report and in submitting issues to the jury. The referee's report was filed on 11 January 1965. Plaintiffs filed exceptions thereto on 8 March 1965. The record is silent as to the date plaintiffs had notice of the filing of the report. Defendant's motion for judgment on the report was filed on 18 May 1967—more than 2 years after the exceptions to the report were filed.

Certain procedural requirements are to be followed in matters where a compulsory reference has been ordered so that a right to a jury trial may be preserved. The party whose interests are adversely affected by the order of the referee must (1) object to the order of reference at the time it was made, (2) file specific exceptions to particular findings of fact made by the referee within thirty days from the filing of the report, (3) formulate appropriate issues of fact raised by the pleadings and based on the facts pointed out in his exceptions, and tender these issues with his exceptions, and (4) in his exceptions demand a jury trial on each issue so tendered. Bartlett v. Hopkins, 235 N.C. 165, 69 S.E.2d 236.

There is no contention on defendant's part that plaintiffs have failed to comply with any of the procedural requirements except that his exceptions, though in proper form and complete compliance, were not filed within 30 days of the date of filing of the referee's report. When objection was raised, the court, in the exercise of its discretion, ordered "that the exceptions to the Report of the Referee filed in this action in March, 1965, be and are a part of this record and that the issues set forth in said exceptions to the Report of the Referee be submitted to a trial by jury". On the authority of Godwin v. Hinnant, 250 N.C. 328, 108 S.E.2d 658, we hold that Judge Cowper had a right, in his discretion, to enter the order. In the Godwin case, defendant excepted in apt time to the referee's findings of fact. Subsequently, the matter was remanded to the referee to file a supplemental report, and in the order remanding defendant was allowed 20 days from the time of filing within which to file exceptions. Defendant failed to file additional or new exceptions within the time provided, which would have been 25 February 1958. At June Term 1958, plaintiff moved for an affirmance of the referee's report for that no exceptions had been filed thereto. The court overruled the motion and allowed defendant until 29 September within which to file exceptions. Plaintiff, on appeal, assigned as error the order of the court overruling his motion for an affirmance of the referee's amended report for that no exceptions had been filed thereto. The Supreme Court, speaking through Rodman, J., said:

"Judge Fountain had a right, in his discretion, to extend the time for filing the exceptions. The time limited in Judge Paul's order was not intended to have greater force than the statutory provision limiting the time to file exceptions. G.S. § 1—195. It did not impair the authority given to Judge Fountain by G.S. § 1—152 to extend the time."

The defendant suggests that even if the court had authority, in its discretion, to enter the order, it should not have so acted. We find no abuse of discretion. The record in this case is replete with indications of procedural delays. The response was not filed within the time allowed by statute. Though the order appointing the referee required a report on or before 1 April 1963, the report was not filed until 11 January 1965. Defendant was allowed until 4 December 1967 to serve case on appeal. The record indicates it was served on plaintiffs on 1 April 1968. Exceptions to the referee's report were filed 26 days after the time allowed by statute. We find no abuse of discretion in the court's allowing the exceptions to be a part of the record over objection raised for the first time more than two years later.

Defendant contends that the court erred in refusing to admit into testimony at the trial defendant's exhibit No. 4 which had been admitted into evidence before the referee without objection. The map is of record in Map Book 4, at page 153, Wayne County Registry, having been recorded in 1938. It does not appear that the purpose of the attempted introduction of the map was to illustrate the testimony of a witness. It does appear that defendant desired its introduction as substantive evidence. The map was not made pursuant to any official authority. The fact that it had been of record since 1938 does not make it official. White v. Town of Edenton, 173 N.C. 32, 91 S.E. 601. A private map may be used only when a witness testifies to its correctness from first-hand knowledge. Stansbury, N.C. Evidence 2d, § 153 at pp. 381—382. The witness did not testify to its correctness from first-hand knowledge. Since the map was not properly authenticated, it was properly excluded as incompetent. See Smith v. Starnes, 1 N.C.App. 192, 160 S.E.2d 547.

Defendant contends that, because plaintiffs made no objection to the introduction of the map at the hearing before the referee and no exception thereto in their exceptions to the referee's report, they cannot now be heard to object. This contention is without merit. The practical purpose of the reference is to develop and delimit the issues to be determined by a jury. Coburn v. Roanoke Land & Timber Corp., 257 N.C. 222, 125 S.E.2d 593. The jury, upon trial on the issues, is not to consider incompetent evidence to the introduction of which objection has been made. Failure to object at the hearing before the referee does not preclude the court from refusing to allow incompetent evidence to be considered by the jury at trial when objection is made to its admission. Green v. Castlebury, 70 N.C. 20.

Defendant further assigns as error portions of the charge of the court. The portions assigned as error are not set out in the assignment of error, nor are any questions sought to be presented thereby disclosed without the necessity of going beyond the assignment of error itself. The portions of the charge excepted to are not identified in the record by letters, parentheses, or any other manner. This is, of course, a patent failure to comply with our rules and does not present the exceptions for review. Long v. Honeycutt, 268 N.C. 33, 149 S.E.2d 579. We have, nevertheless, carefully examined the charge of the court and find that the court properly gave the contentions of the parties from the pleadings and the evidence and we do not find prejudicial error.

Affirmed.

MALLARD, C. J., and BRITT, J., concur.