{ "id": 8659940, "name": "A. D. DUMAS v. D. M. MORRISON et al., Trustees of PRESBYTERIAN CHURCH AT ROCKINGHAM", "name_abbreviation": "Dumas v. Morrison", "decision_date": "1918-04-24", "docket_number": "", "first_page": "431", "last_page": "435", "citations": [ { "type": "official", "cite": "175 N.C. 431" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "84 S. E., 252", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "103 N. C., 19", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8648845 ], "opinion_index": 0, "case_paths": [ "/nc/103/0019-01" ] }, { "cite": "126 N. C., 11", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657682 ], "opinion_index": 0, "case_paths": [ "/nc/126/0011-01" ] }, { "cite": "109 N. C., 148", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8649621 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/109/0148-01" ] }, { "cite": "157 N. C., 10", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656208 ], "opinion_index": 0, "case_paths": [ "/nc/157/0010-01" ] }, { "cite": "125 N. C., 382", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "124 N. C., 579", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660472 ], "opinion_index": 0, "case_paths": [ "/nc/124/0579-01" ] }, { "cite": "125 N. C., 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273967 ], "opinion_index": 0, "case_paths": [ "/nc/125/0380-01" ] } ], "analysis": { "cardinality": 529, "char_count": 11511, "ocr_confidence": 0.456, "pagerank": { "raw": 4.84617488304357e-07, "percentile": 0.9324510811248069 }, "sha256": "679a42aaec18590f42c6e5dbfbab0c82f3544a988a54ff168ce366248ea89b5b", "simhash": "1:f625d7a0b846aad0", "word_count": 2053 }, "last_updated": "2023-07-14T19:50:36.007196+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "A. D. DUMAS v. D. M. MORRISON et al., Trustees of PRESBYTERIAN CHURCH AT ROCKINGHAM." ], "opinions": [ { "text": "\"WalKER, J.,\nafter stating the case: The real question in this case is whether the judge had power to set aside the findings of the referee or the most of them, and find the facts anew from the evidence taken and reported by the referee. The plaintiff says that he could not do so, because there were no exceptions to the referee\u2019s findings which justified such a course. We do not so understand the record. The defendants filed eleven exceptions to the referee\u2019s report, and every one of them (save one which is to the form of the report) was taken to the findings of fact, and these ten of them are practically and substantially to the effect that the findings should have been such as to show that defendants had either paid all that was due or that the plaintiff, for other reasons, was not entitled to recover anything. They amounted, in other words, to a sweeping exception that the findings were contrary to the evidence, and this required the judge to review the entire case, and if he disagreed with the referee to find the facts anew, and this he did.\nIt is not denied that the judge has the power to review and revise the report, but the contention is that he must restrict his rulings to the specific exceptions which have been taken by either party. If this be true, and the judge\u2019s power is not any broader than as stated by the plaintiff, we have shown that the exceptions are of such a nature and so comprehensive as to bring the case even within this restricted statement of the rule. The statute, however, gives a wider scope to the judge\u2019s power in dealing with the report of a referee. Revisal, sec. 524, provides that \u201cthe report of the referee shall be made to the clerk of the court in which the action is pending; either party, during the term or upon ten days\u2019 notice to the adverse party out of term, may move the judge to review such report, and set aside, modify or confirm the same in whole or in part, and no judgment shall be entered on any reference except by order of the judge.\u201d\nIt will be noted that the judge is authorized by that provision to review, set aside or modify the report, and this may be done as to each of these powers, in whole dr in part. The general meaning of the word \u201creview\u201d is \u201cto examine critically and deliberately,\u201d and its specific meaning is \u201cto reconsider\u201d or \u201cto revise,\u201d and in its legal sense it means \u201cto re\u00e9xamine judicially.\u201d But he may \u201cset aside\u201d the report \u201cor modify it,\u201d and this may be done, as we have seen, \u201cin whole or in part.\u201d This power, as defined in the statute, is a very broad one.\nThe question has been decided by this Court upon facts so similar to those in this record that the two cases cannot be distinguished. In Brackett v. Gilliam, 125 N. C., 380, the present Chief Justice delivering the opinion, this Court said:\n\u201cThe fourth exception, therefore, took the entire ruling of the referee, that the plaintiff could not recover, to the judge for review. The plaintiff could not bind the referee to the reason he gave for his conclusion while excepting to the conclusion. The exception being before the judge, be could overrule, modify, or affirm tbe action of tbe referee. He could find tbe facts himself and affirm, as be did, tbe referee\u2019s conclusion, as stated in tbe fourth exception, though be reversed tbe reason given by the referee for such result. Tbe power of tbe court over references is very broad.\n\u201cAs is said in tbe late case of Cummings v. Swepson, 124 N. C., 579: \u2018The court retains tbe cause and its jurisdiction in every case of reference, with power to review and reverse tbe conclusions of law of tbe referee, and a discretion to modify and set aside tbe report, and bis ruling in tbe latter respect is not reviewable unless it appears that such discretion has been abused.\u2019 \u201d\nThe exception in that case- involved tbe same question as we have here, whether tbe plaintiff could recover. It was, at least, tantamount to saying that tbe referee erred in bolding that plaintiff could not recover, and it was so viewed by this Court. 125 N. C., 382. The exception here does not require construction to show what question is presented. It is an objection to tbe referee\u2019s report upon tbe ground that be found and decided that plaintiff could recover. This is plainly expressed, and not merely to be inferred from the exception, and it is repeated in all but one or two of tbe 'other exceptions. It was, in legal effect, tbe same as if tbe defendants bad excepted because tbe findings of fact by the referee were not supported by tbe evidence, being contrary to its weight. Jeffords v. Waterworks Co., 157 N. C., 10.\nThis Court has said that \u201cwhen exceptions are taken to a referee\u2019s findings of fact and law,' it is tbe duty of tbe judge to consider tbe evidence and give bis own opinion and conclusion, both upon tbe facts and tbe law. He is not permitted to do this in a perfunctory way, but be must deliberate and decide as in other cases \u2014 use bis own faculties in ascertaining tbe truth, and form bis own judgment as to fact and law. This is required not only as a check upon tbe referee and a safeguard against any possible errors on bis part, but because be cannot review tbe referee\u2019s findings in any other way. This point was presented clearly and directly in Miller v. Groome, 109 N. C., 148, and it controls this case.\u201d Thompson v. Smith, 156 Credle v. Ayers, 126 N. C., 11; Wallace v. Douglass, 103 N. C., 19; Miller v. Groome, 109 N. C., 148.\nIt was held in Highland v. Ice Co., 84 S. E., 252, that findings of fact by a referee, though entitled to weight, are not conclusive, and if not justified by tbe evidence may be disregarded, or set aside by the court and a decree entered according to its own view of tbe evidence. It must be remembered that a judge of tbe Superior Court in reviewing a referee\u2019s report is not confined to tbe question whether there is any evidence to support bis findings of fact, but be may also decide that while there is some such evidence, it does not preponderate in favor 'of the plaintiff, and thus find the facts contrary to those reported by the referee. The rule is otherwise in this Court, when a referee\u2019s report is under consideration. We do not review the judge\u2019s findings, if there is any evidence to support them, and do not pass upon the weight of the evidence.\nBut Judge Long has found as a fact that the following express agreement was made by the parties as to his power to find the facts and decide the case, and he was thereby authorized (quoting the language of the agreement) \u201cto take the record, and pass upon the whole case, and render judgment at any time thereafter he was able to do so.\u201d (Italics ours.) So that in any view taken of the matter, the judge had the power to examine and consider the evidence, find the facts, and state his conclusion of law upon which the judgment was entered. Apart from any other valid reason, which justified his course, the defendants\u2019 exceptions alone required him and, at least, authorized him to do so.\nAffirmed.", "type": "majority", "author": "\"WalKER, J.," } ], "attorneys": [ "J ohn T. Bennett, W. R. J ones, and Robinson, Caudle & Pruette for plaintiff.", "Fred W. Bynum for defendants." ], "corrections": "", "head_matter": "A. D. DUMAS v. D. M. MORRISON et al., Trustees of PRESBYTERIAN CHURCH AT ROCKINGHAM.\n(Filed 24 April, 1918.)\n1. Reference \u2014 Exceptions\u2014Evidence.\nException to the referee\u2019s report in an action upon contract wherein defendant alleges plaintiff\u2019s breach and consequent damages, finding defendant was due plaintiff a certain sum, that under all the evidence the referee should have found that plaintiff breached the contract and was not entitled to recover any sum, is equivalent to an exception that the findings are contrary to the evidence, permitting the judge to review the entire case and make his own findings thereon.\n2. Reference \u2014 Review\u2014Courts.\nThe statutory authority given the judge of the Superior Court to \u201creview\u201d the report of a referee is broad in its scope, conferring power upon him to set it aside or modify it in whole or in part, and his exercise of such authority may be independent and not confined to the exceptions taken, as is the ease on an appeal to the Supreme Court.\n3. Reference \u2014 Agreement to Review \u2014 Courts.\nWhere the parties to an action consent that the trial judge may pass upon the report of a referee out of term and \u201ctake the record, pass upon the whole case, and render judgment,\u201d etc., the agreement itself authorizes him to pass upon the whole case and make his independent findings from the evidence.\nCivil actioN, beard by Long, J., at July Term, 1917, of EichMONd.\nTbe plaintiff sued for tbe recovery of a balance alleged to be due on a contract between bim and tbe defendants for tbe building of a cburcb at Eockingbam of which tbe defendants were trustees.\nTbe case was referred, by consent of parties, and tbe referee made bis report, to which exceptions were filed by defendants, and among them this one appears: \u201cFor tbat tbe referee finds tbat tbe defendants are due tbe plaintiff tbe sum of $908, whereas, under all tbe evidence be should bave found tbat tbe plaintiff bad breached tbe contract and was not entitled to recover any sum from tbe defendants.\u201d There are others; of a like kind, which challenge the correctness of the referee\u2019s finding-that the defendants are indebted to the plaintiff, and allege, on the contrary, that the defendants owe the plaintiff nothing and that his action should be dismissed.\nThe matter came on to be heard before Judge Long at July Terra, 1917, when, as found by the judge, the following agreement was entered into by the parties on account of the lack of time and the consequent inability of the judge to hear the case:\n\u201cThis action came on for hearing before the undersigned judge at July Term, 1917, of Biehmond County, and was heard upon pleadings and the report of the referee and exceptions thereto, and the argument of counsel representing the plaintiff and the defendants, and after the argument counsel on both sides agreed that the court might take the record and pass upon the whole case, and render judgment at any time thereafter when it was able to do so.\u201d (Italics ours.)\nJudge Long, instead of passing on each exception, found the facts himself from the evidence and stated his conclusion of law. After going into the matter in some detail, showing the several residents in which the plaintiff, as contractor, had failed to do his work properly, or to perform his contract according to plans and specifications, the judge makes the following findings of fact: \u201cThe damage done to the building by reason of plaintiff\u2019s failure and the material, labor, and expense incurred by the defendants in order to remedy the defects arising from plaintiff\u2019s failure, as heretofore found \u2014 in brief, all the damage suffered by the defendant for and on account of the breach of the contract by the plaintiff, and of his renunciation of his contract \u2014 is in excess of the amount sought to be recovered by the plaintiff of the defendants. The court does not make its findings more definite as to this amount because, in the view that it takes of the case at this time, it is confining itself to the question as to whether or not the plaintiff is entitled to recover of the defendants, the court finding that the plaintiff from time to time committed breaches of his contract and finally renounced it and put the defendants under compulsion to take the building in hand or otherwise suffer an entire loss of the building.\u201d\nJudgment was rendered for the defendants, and plaintiff appealed.\nJ ohn T. Bennett, W. R. J ones, and Robinson, Caudle & Pruette for plaintiff.\nFred W. Bynum for defendants." }, "file_name": "0431-01", "first_page_order": 485, "last_page_order": 489 }