{
  "id": 8627650,
  "name": "C. McCOY FRANKLIN v. CROSSNORE SCHOOL et al.",
  "name_abbreviation": "Franklin v. Crossnore School",
  "decision_date": "1938-03-23",
  "docket_number": "",
  "first_page": "263",
  "last_page": "264",
  "citations": [
    {
      "type": "official",
      "cite": "213 N.C. 263"
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  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
  },
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      "cite": "174 S. E., 285",
      "category": "reporters:state_regional",
      "reporter": "S.E.",
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    },
    {
      "cite": "206 N. C., 474",
      "category": "reporters:state",
      "reporter": "N.C.",
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    {
      "cite": "182 S. E., 335",
      "category": "reporters:state_regional",
      "reporter": "S.E.",
      "opinion_index": 0
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    {
      "cite": "208 N. C., 670",
      "category": "reporters:state",
      "reporter": "N.C.",
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        8614443,
        8614500
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        "/nc/208/0670-01",
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  "last_updated": "2023-07-14T20:08:52.368812+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "C. McCOY FRANKLIN v. CROSSNORE SCHOOL et al."
    ],
    "opinions": [
      {
        "text": "Stacy, C. J.\nIt does not appear from the judgment entered at the October Term, 1937, Avery Superior Court, how the new trial is to be had, whether by reference, the judge, or the jury. There was no error in declining to sign the order tendered by defendants, for in the original order of reference the parties \u201cmerely waived the right to a jury trial\u201d and did not agree upon the referee. Indeed it is stipulated in the order that in case of \u201can appeal by either party\u201d from the report of the referee the judge shall \u201chear the facts in the same manner as the jury,\u201d and shall \u201chave the right to find the facts in their entirety, ... all of which shall be subject to the approval of the trial judge at the time.\u201d Whether this order, which contains several unusual provisions (In re Snelgrove, 208 N. C., 670, 182 S. E., 335), still subsists as a valid order in the cause was not determined in the court below. Edwards v. Perry, 206 N. C., 474, 174 S. E., 285; 20 R. C. L., 323.\nThe question debated on argument and in brief, i.e., whether interlocutory orders, entered without objection or by consent, are vacated when a new trial is granted for newly discovered evidence is not before us for decision. It is conceded that the final judgment and the verdict or findings upon which it rests are ex necessitate set aside by the order. 20 R. C. L., 317.\nThe appeal is premature and must be dismissed.\nAppeal dismissed.",
        "type": "majority",
        "author": "Stacy, C. J."
      }
    ],
    "attorneys": [
      "Bowie & Bowie and J. V. Bowers for plaintiff, appellee.",
      "Charles Hughes, Carrie L. McLean and C. W. Tillett for defendants, appellants."
    ],
    "corrections": "",
    "head_matter": "C. McCOY FRANKLIN v. CROSSNORE SCHOOL et al.\n(Filed 23 March, 1938.)\n1. Appeal and Error \u00a7 50: Reference \u00a7 10 \u2014 When original order does not agree upon referee, trial court need not rerefer to same referee after Supreme Court grants a new trial for newly discovered evidence.\nWhen the order of reference merely waives the right to a jury trial and does not agree upon a referee, it is not error for the trial court upon certification of the opinion of the Supreme Court granting a new trial for newly discovered evidence, to refuse to sign defendant\u2019s order that the cause be referred to the same referee who first heard the matter.\n2. Appeal and Error \u00a7 49\u2014\nWhen the Supreme Court grants a new trial for newly discovered evidence, the final judgment and the verdict or findings upon which it rests are ex necessitate set aside.\n3. Appeal and Error \u00a7 2 \u2014 Appeal in this case dismissed as premature.\nWhen the Supreme Court has granted a motion for a new trial for newly discovered evidence in a cause originally heard by a referee, an appeal from judgment of the Superior Court annulling the former judgment and restoring the cause to the docket for trial, is premature and will be dismissed.\nAppeal by defendants from Clement, J., at October Term, 1937, of Avery.\nCivil action for alleged breach of contract.\nThe action was instituted 26 July, 1935, pleadings filed, order of reference entered at April Term, 1936, matter heard before the referee, report duly made, and exceptions thereto filed, judgment on the report and appeal to the Supreme Court at the Fall Term, 1937, when and where, upon motion of defendants, a new trial was ordered on account of newly discovered evidence.\nAt the October Term, 1937, of Avery Superior Court the defendants tendered judgment on the certificate of the Supreme Court, cancelling the former judgment and directing the referee, previously appointed, to proceed to hear the matter anew and to report his findings, together with his conclusions of law. The court declined to sign this order and, in its stead, entered judgment annulling the former judgment and restoring the cause to the docket for trial. Defendants appeal, assigning errors.\nBowie & Bowie and J. V. Bowers for plaintiff, appellee.\nCharles Hughes, Carrie L. McLean and C. W. Tillett for defendants, appellants."
  },
  "file_name": "0263-01",
  "first_page_order": 327,
  "last_page_order": 328
}