#### E. McL. WILSON et al., v. O. O. ALLSBROOK, Trustee, et al.

(Filed 5 April, 1933.)

Reference G a — Trial court may re-refer cause after Supreme Court has remanded appeal with direction that order of confirmation he vacated.

Where the Supreme Court has remanded a cause with direction that the order of the trial court in confirming the report of the referee be vacated and that further proceedings be had according to law, the trial judge has the power, the original reference having been by consent, to again refer the cause to the referee for additional findings in accordance with the opinion of the Supreme Court, such order being tantamount to vacating the order of confirmation, and the appellants being entitled to notice and a hearing before the referee with right of appeal.

Appeal by plaintiffs from' Sinclair, J., at February Term, 1933, of New HaNOver.

Civil action beard on motion to- vacate judgment confirming- referee’s report without more. Motion denied and plaintiffs appeal.

Isaac G. Wright and R. G. Grady for plaintiffs.

Chas. B. Newcomb and John A. Steverus for defendants.

Stacy, C. J.

This is the same case that was before us at the last term, 203 N. 0., 498, opinion filed 9 November, 1932. Error having-been found in the judgment of the Superior Court, the cause was remanded with direction that the order of confirmation be vacated and further proceedings had according to the usual course and practice of the court.

Plaintiffs moved, upon said opinion and judgment being certified down, that the order of confirmation be vacated, without more, thus seeking to have the case tried before a jury. The court declined to sign the judgment tendered on this motion, but remanded the cause “in accordance with the opinion of the Supreme Court” to the referee for additional findings and supplement report. This was within his authority, the original reference having been by consent. Morisey v. Swinson, 104 N. C., 555, 10 S. E., 754; Driller Co. v. Worth, 117 N. C., 515, 23 S. E., 427; Flemming v. Roberts, 77 N. C., 415.

The order sending the cause back to the referee was perforce tantamount to vacating the previous order of confirmation. Of course, the plaintiffs are entitled to notice and a hearing before the referee, with right of appeal to the court in case his additional findings are adverse. As thus construed, we perceive no cause for complaint on the part of the plaintiffs.

Affirmed.