Gay v. . Grant , 116 N.C. 93 ( 1895 )

There was no error in his Honor's overruling each and every one of the plaintiffs' exceptions to the reformed report 2d of the referee. As to the first exception, it was not necessary for the referee to have given any notice to any party to the suit as to when or where he intended to make the corrections which this Court had instructed him to make, at its September Term, 1888. The account was not opened for the taking of additional testimony. As to the second exception to the report of the referee, it is only necessary to say that the plaintiffs made no demand for any such sums as those therein set forth in their complaint or replication, nor did they offer any proof claiming them. They ignored the said judgment, and sought and had an account of the administration from the beginning. Besides, it appears from the records in the case, JudgeShepherd's judgment of June, 1886, and affirmed by this Court at its September Term, 1888 (Gay v. Grant, 101 N.C. 206), that these sums were not due. As to the third exception to the referee's report, it is nowhere to be met with in the pleadings or evidence. It must have got into the exceptions through mistake. No mention of it was made by plaintiff's attorney in his argument before this Court.

After a comparison of the first report of the referee with that of the second or reformed one, it is apparent that the referee has made the corrections which he was instructed to make by this Court, and that it is in all respects proper and in conformity with the ruling of this Court in this case reported in 101 N.C. 206. The second assignment of error is without force. The case was remanded by this Court at its (101) September Term, 1888, with an order that the referee be instructed to modify the account which he had filed with his report, in accordance with the opinion of this Court. No additional testimony was asked to be taken by the plaintiffs and none ordered by the Court. The duties imposed upon the referee were simply those of an accountant instructed to alter and modify, in certain stated particulars, an account already stated, and to make it conform to the rulings of this Court in certain specified items. It was in no sense a new trial of the whole matter, and the referee properly rejected the offer to take other testimony.

It is to be observed that if the matters, which the plaintiffs complain they were not allowed to make proof of, were material and pertinent, they have themselves to blame for not putting them in evidence in the original taking of proof by the referee, because the plaintiffs admit that "said evidence could have been procured and used before the referee on the original hearing." The third assignment of error is not sustained. We think the judgment of his Honor, Judge Whitaker, was correct, and in conformity to the ruling of this Court, made at its September Term, 1888, in this case. There is no error in the judgment of the court below and the same is

Affirmed.

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