#### L. S. OVERMAN, Administrator, v. MATTIE LANIER et al.

(Filed 9 November, 1911.)

1. Appeal and Error — Reference—Trial Judge — Judgment Pro Forma —Constitutional Law.

It is required of the trial judge to review and pass upon exceptions to a report of a referee as to tbe facts found and tbe conclusions of law tbereon, and a pro forma judgment entered by him for any reason cannot be reviewed by tbe Supreme Court on appeal under Article IV, sec. 8, of our Constitution, for it is only decisions of tbe lower courts wbicb may tbus be considered.

2. Appeal and Error — Reference—Judgment—Burden of Presumptions — Procedure.

Tbe presumption on appeal to tbe Supreme Court is that tbe judgment of tbe lower court is correct, and a pro forma judgment entered by tbe trial judge confirming a report of a referee improperly throws tbe burden of tbis presumption upon tbe appellant and is unfair to bim, and to tbe Supreme Court, wbicb bas a right to the judge’s well-considered conclusions.

3. Appeal and Error — Reference—Pro Forma Judgments — Costs— Records — Another Appeal.

It appearing from the statement made in 'the Supreme Court by tbe parties 6f record, that tbe trial judge entered a pro forma judgment, by consent of both parties, without consideration, upon a report of a referee, tbe cause is remanded to tbe judge holding tbe courts of tbe district from which the appeal comes, with direction that be carefully review tbe findings of fact and conclusions of law of tbe referee wherever excepted to and enter bis deliberate judgment as to each exception. Each party is taxed with one-balf tbe costs of appeal, and tbe appellants allowed to withdraw tbe record and use so much of.it as is useful and appropriate, should he deem another appeal desirable.

*538Appeal from Lyon, J., at May Termj 1911, of RowaN.

The facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Clark.

T. TP. Kluttz, E. C. Gregory, T. J. Jerome, E. J. Justice, L. M. Clement, and Charles W. T'illett for plaintiff.

Walser & Walser, G. W. Garland, Burwell & Cansler, Mcmly, Mendren & Womble for defendant.

Clabe:, C. J.

This case was referred by consent, and on the coming in of the report there were many exceptions, both to the findings of facts and to the conclusions of law. The record states that all exceptions were overruled and that the court confirmed the report in all respects. Both sides appealed. When the case was called in this Court it was stated by counsel on both sides that the judge below, owing, to the rush of business and the anxiety of both parties to get the case sent up for review, had entered a pro forma judgment without having really considered any.of the exceptions.

Under the former system, before the Constitution of 1868, this Court was the creation of the Legislature, and under the construction of the creating act causes in equity were usually transmitted to this Court upon a pro forma judgment because this Court passed upon the findings of fact. But under the Constitution of 1868, Art. IV, sec. 8, this Court reviews upon appeal any “decision" of the courts below. When a pro forma judgment is rendered, there has been no decision, and hence no appeal can be entertained. In S. v. Locust, 63 N. C., 575, which was a civil judgment upon a peace bond, this Court said: “We take occasion to remind the judges of the Superior Courts that we will not hereafter consider cases sent to this Court upon pro forma judgments, as this Court is entitled to the benefit of their well-considered opinions upon questions of law which may arise in such cases.”'

In Hines v. Hines, 84 N. C., 125, the Court cites with approval the above quotation from S. v. Locust. In Miller v. Groome, 109 N. C., 149, the Court said: “It was perfectly com*539petent for tbe judge, upon review, if be thought so,, to adopt tbe findings of fact and conclusions of law of tbe referee, and then they would become tbe findings and conclusions of tbe court; •but it was error in bis Honor to summarily dispose of tbe exceptions by overruling tbem and confirming tbe report without reviewing and passing upon tbem judicially.”

In Thompson v. Smith, ante, 345, Mr. Justice Walker reviews tbe subject and says: “When exceptions are taken to a referee’s findings of fact and law, it is tbe duty of tbe judge to consider the evidence and give bis own opinion and conclusions both upon tbe facts and upon tbe law. He is not permitted to do tbis in a perfunctory way, but be must deliberate and decide as in other cases — use bis own faculties and ascertain tbe truth, and form bis own judgment as to fact and law. Tbis is required not only as a cheek upon tbe referee and a safeguard against any possible errors on bis part, but because we cannot review tbe referee’s findings in any other way. Tbe point was presented clearly and directly in Miller v. Groome, 109 N. C., 148, and controls tbis case.” And thereupon it was further said: “Tbe cause is remanded with directions that tbe judge of tbe Superior Court will review tbe referee’s findings of fact and bis rulings as to law upon tbe exceptions thereto.”

There are other decisions to tbe same effect. But tbe above are sufficient, if indeed any authority were needed under tbe terms of our Constitution. Tbe litigants are entitled" to, and should have, tbe opinion of tbe learned lawyer who presides in tbe Superior Court, who should carefully review tbe entire evidence and make bis own 'findings of fact, and enter bis own conclusions as to tbe law. If tbis is done in a perfunctory way, as by a pro forma judgment, there is no method in which tbe findings of fact by tbe referee can be reviewed when there is any evidence whatever upon tbe findings excepted to. Tbis Court also, as well as tbe parties, are entitled to tbe aid of tbe judgment of tbe court below after tbe full consideration of tbe cause by him. Tbe presumption is that tbe judgment below is correct, and tbe burden is upon tbe appellant to overcome that presumption. It is not fair to him nor to tbis Court to throw tbe burden of that pre*540sumption against either party unless the judge has fully and carefully considered the cause before rendering the judgment, as it is his duty to do in every case.

If this were a consent judgment, no appeal would lie. Besides, “Consent judgments are in effect merely contracts of the parties,” and have no validity as precedents. Bank v. Commissioners, 119 N. C., 226, and cases there cited.

Even if this Court had power to recognize such a course as was here taken, it would not do so, because the result would be to transfer into this Court, without review or consideration by the judge below, all cases where there is a report by a referee. It would result that this Court would necessarily be compelled to review the findings of fact by the referee, a duty which devolves upon the trial judge. The cause must therefore be remanded, as in Thompson v. Smith, ante, 345, to the judge holding the courts of the district, with directions that he carefully review the findings of fact and conclusions of law of the referee wherever excepted to and enter his deliberate judgment as to each exception. '

As the pro forma judgment was entered with the assent of both parties, each will pay half the costs of this appeal. It may be that the judgment entered by the judge below upon consideration of the case in accordance with law, and as herein directed, may prove satisfactory to one or to both parties. But if there should be an appeal from his judgment, the appellant may use so much of the printed matter sent up in this ease as may be useful and appropriate in that appeal. To that end all the printed matter sent up in this case may be withdrawn by the parties.

Remanded.