Green v. . Castlebury , 70 N.C. 27 ( 1874 )

RODMAN, J., dissenting. The case was referred, at Fall Term, 1869, to James E. Kerr, to state an account, etc., and on the 9th of August, 1873, the report of the referee was returned. At Fall Term, 1873, the defendants excepted to the report of the referee, and filed in Court the following notice, which had been served, as stated:

"State, upon the relation of H. B. and M. S. Armfield,

against

John D. Brown and others.

To Mess'rs Craige Craige and McCorkle:

GENTLEMEN: Take notice that we shall, on the calling of the above case, move the Court to submit as an issue of fact to the jury, the question of diligence or negligence of the defendant John D. Brown, arising out of the matters in controversy in the above named suit, under the act of 1866-67, Chap. 59, Sec. 2. Very respectfully, BAILEY HENDERSON, Attorneys for defendants."

"Served Oct. 16th, 1873, by delivering copy of notice to Craige Craige.

C. F. WAGGONER, Sheriff."

(28) Defendants moved that such issue be made up and submitted to the jury. His Honor refused the motion on the ground that the notice was served too late.

From this judgment of the Court, the defendants appealed. This was a civil action upon a guardian bond. Upon complaint and answer, at Fall Term, 1869, there was a reference for an account. After taking proofs and hearing the parties, the referee made his report at Fall Term, 1873, when exceptions were filed by the defendants, who at the same time, upon due notice, demanded a trial by jury, upon the question of diligence, pursuant to Chap. 59, Sec. 2, of the acts of 1866-67. This being refused by the Court, upon the ground that the notice was served too late, the defendants appealed. So the question to be determined is, were the defendants, as a matter of right, at that time, entitled to a jury trial under the said act, or otherwise.

1. The act above cited was passed before the adoption of the present Constitution, under which we have taken a new departure, both in legislation and the modes of procedure, in the trial of actions. Chap. 201 of the acts of 1868-69, revises and consolidates all the statute laws of the State upon the subject of guardian and ward, as Chap. 113 revises and re-enacts the whole body of our statute laws concerning executors and administrators, and the settlement of their estates. These acts are embodied in Battle's Revisal, Chaps. 45 and 53, but the act relied upon by the defendants is omitted, thus confirming our legal conclusion that Chap. 59, acts of 1866-67 is repealed by the acts of 1868-69 and Chap. 121, Sec. 2, Bat. Rev., which declares that all acts theretofore in force, the subjects of which are digested and compiled in the Revisal, are repealed, with certain exceptions not effecting this case.

2. Assuming, therefore, that the defendants cannot claim a jury trial, under the act of 1866-67, are they entitled to the (29) remedy they ask under any other provision of the law?

The claim of the defendants to a jury trial is next founded on the Constitution of the State, art. 11, Sec. 18, of which provides "that in all issues of fact joined in any Court, the parties may waive the right to have the same determined by a jury, in which case the finding of the Judge upon the facts shall have the force and effect of a verdict of a jury."

The right of jury trial here secured is not absolute, but sub modo, that is upon all issues joined, the meaning of which term can only be ascertained outside of the Constitution, and in the legislation since, to secure the benefit of this provision of the Constitution.

By title 10, Sec. 219, C. C. P., it is seen that the issues arise upon the pleadings, and if they are issued of law they are to be tried by the Court, but if they are of fact, by Sec. 224, they are to be tried by a jury, unless a jury trial is waived. When issues of fact are thus made up and joined by the pleadings, they stand for trial and must be tried in one of two ways, either by the jury or by the Court, as is manifest by Section 229. When, therefore, Secs. 244 and 245 provided for a reference, these two sections are to be collated with Sec. 229, and art. 4, Sec. 18, of the Constitution of the State, from which it will be seen that the trial by reference is ancillary only to the reference to the Court, and the finding of the referees, when revised and completed, pursuant to Secs. 246 and 247, becomes the finding of the Court, from whose judgment thereon the appeal lies to this Court.

There are three modes of waiving a jury trial:

1. By default; 2, by written consent; and 3, by oral consent, entered on the minutes of Court. Supposing these modes of the waiver of a jury trial were not merely directory, but essential, it would yet seem that a reference, appearing of record, is the highest evidence of waiver, and cannot be questioned without impairing the value and due order of judicial proceedings. When the record shows that a reference has been made, it imports that every condition has been complied (30) with, necessary to make it effectual, and confers upon the Court all the rights and duties conferred upon a jury. In the exercise of this power the Court below may revise and correct its own findings, and to that end may invoke the aid of a jury in matters of doubt and conflicting evidence, and it may direct a jury to find either a general or special verdict, upon all or any of the issues, or upon any particular question of fact, all of which findings shall be written and entered of record. Sec. 233. The issues having been tried and the facts found, the judgment of the Court is rendered thereon. The mode of appeal is substantially the same, whether the trial is by jury, by the court, or by referees, and in either case the facts are found, the case settled and the argument here is confined to the exceptions of law taken, which are filed as a part of the case. There can be but few cases where it can be necessary or proper to set forth any of the evidence in a case settled for this Court. One instance is, where exceptions are taken in the trial, to the admissibility of evidence, in which case the exception is made a part of the case, with so much of the evidence as may be material to the question to be raised. C. C. P. Sec. 236. Another instance would probably be the finding of a material fact by the Court, which is unsupported by any evidence. With these and perhaps a few other rare exceptions, this Court, even if disposed to, cannot look into the voluminous evidence which often encumbers the transcript of appeal.

3. But suppose a reference is compulsory, as provided for in certain cases specified in C. C. P. Sec. 245, is the right of jury trial thereby lost? We think not, because the right of trial by jury is a constitutional one, and a reference, under the Code, is not ex vi termini, a waiver of this right, which can be lost by consent only. Such a construction must, therefore, be given to this section of the Code as will be consistent with the jealous watchfulness of the Constitution, over the right of trial by jury. The apparent difficulty here grows out of the fact, that the distinction between law and equity, as to the forms of action, is abolished, and the right of trial by jury is now (31) conferred in matters of equity as well as law, thus in a measure incidentally mingling the substance as well as the forms of the two jurisdictions. The usual subjects of a compulsory reference will be, under the new system, matters of equity, which were formerly not tried by a jury, but which now must be, if the party claims the right. There will be cases, those involving complicated matters of account, for instance, where, without a reference, there would be a failure of justice, and where if the parties refuse consent, the reference must be compulsory. In such cases, if demanded, a jury trial must be allowed at some stage of the proceedings; at what period of the trial, must be determined by the Court in such way as will be most conducive to the ends of justice and a speedy and final termination of the controversy. In analogy to equity proceedings it may be found most proper to order a jury upon the coming in of the report, when the material issues will be eliminated by the finding of the facts and the exceptions thereto. This discussion, however, is not necessary to the decision of our case, but is closely connected with and grows out of it. In the case before us, we hold that the reference was by consent duly given, and that parties after selecting their forum and meeting with an adverse decision, will not be allowed, as a matter of right, to turn round and successfully assert a right which they had renounced. The Judge below is not precluded from granting the application in the exercise of his discretionary and revisory powers, and doubtless he will do so in cases of evident wrong and injustice. The law clothes him with that power as a trust, great, it is true, and liable to abuse, but not greater than was possessed by the Judges under the old system, when they could grant new trials until the verdict conformed to their views. Nay, a Judge now, has not as much power as then, for so vigilant and zealous of abuse is the new Code, that Section 236 makes express provision for an appeal from all orders granting as well as refusing new trials, in which cases exceptions are to be filed and the cases settled as in the cases of appeal. In the case before us there is but a single item in dispute, and as to that, all the (32) facts are found by the referee, and are not controverted by the defendants, thus presenting only questions of law for the Court.

Judgment affirmed, and case remanded to the end that the case be proceeded with according to the course of the Court.

PER CURIAM. Judgment affirmed.