{ "id": 8682295, "name": "JAMES W. GRANT Adm'r v. WILLIAM A. REESE Adm'r", "name_abbreviation": "Grant v. Resse", "decision_date": "1880-01", "docket_number": "", "first_page": "72", "last_page": "75", "citations": [ { "type": "official", "cite": "82 N.C. 72" } ], "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": "77 N. C., 418", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8682974 ], "opinion_index": -1, "case_paths": [ "/nc/77/0418-01" ] }, { "cite": "70 N. C., 27", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683878 ], "opinion_index": -1, "case_paths": [ "/nc/70/0027-01" ] }, { "cite": "80 N. C., 258", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8690480 ], "opinion_index": -1, "case_paths": [ "/nc/80/0258-01" ] }, { "cite": "81 N. C., 56", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8684368 ], "opinion_index": -1, "case_paths": [ "/nc/81/0056-01" ] }, { "cite": "79 N. C., 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683622 ], "opinion_index": -1, "case_paths": [ "/nc/79/0001-01" ] }, { "cite": "65 N. C., 102", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1955295 ], "opinion_index": 0, "case_paths": [ "/nc/65/0102-01" ] }, { "cite": "78 N. C., 499", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8697075 ], "opinion_index": 0, "case_paths": [ "/nc/78/0499-01" ] }, { "cite": "77 N. C., 418", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8682974 ], "opinion_index": 0, "case_paths": [ "/nc/77/0418-01" ] }, { "cite": "70 N. C., 27", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683878 ], "opinion_index": 0, "case_paths": [ "/nc/70/0027-01" ] }, { "cite": "80 N. C., 258", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8690480 ], "opinion_index": 0, "case_paths": [ "/nc/80/0258-01" ] }, { "cite": "81 N. C., 56", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8684368 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/81/0056-01" ] }, { "cite": "79 N. C., 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683622 ], "opinion_index": 0, "case_paths": [ "/nc/79/0001-01" ] } ], "analysis": { "cardinality": 350, "char_count": 5457, "ocr_confidence": 0.527, "pagerank": { "raw": 1.5108320935472752e-07, "percentile": 0.6674311900037415 }, "sha256": "7ae757474e114d057a160fc657485581091cb8e782ad81df3f8517eab09dfa8d", "simhash": "1:d4d86ad2cbe61c53", "word_count": 984 }, "last_updated": "2023-07-14T15:32:09.383104+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JAMES W. GRANT Adm\u2019r v. WILLIAM A. REESE Adm'r." ], "opinions": [ { "text": "Smith, C. J.\nThis action is brought on the bond executed by the defendants on the appointment of the defendant, William A. Reese, as administrator de bonis non, with, the will annexed of Martha Parker, by the plaintiff as administrator de bonis non of Sterling Smith, sole devisee and legatee under her will, and charges negligence in the management of the estate and a waste and misapplication of assets. The answer denies the allegations of mismanagement and waste, and at the return term an order was entered in the cause in the following terms: \u201cReferred to Win. H. Hughes to state an account and report.\u201d The cause was continued without any report from the referee until fall term, 1878, when the following order was made : \u201c This cause coming on to be heard and no report having been made by the referee, it is now agreed, that the former reference be, and the same is hereby stricken out, andii is further agreed, that the cause be referred to T. W. Mason, Esq , to take and state the account between the estate of Martha Parker and W. A. Reese, her administrator, and it appearing that, to ascertain how said account stands, it is necessary to take an account between said estate of W. J. Harrell, her former administrator, the said T. W. Mason will take the same also and report to the next term of this court.\u201d\nIn accordance with this direction the referee stated the account and made report to fall term, 1879, separating and distinguishing his findings of fact from his findings of law, with exhibits and testimony taken before himself and the former referee, not necessary to be more particularly set out. Numerous exceptions were filed by the defendants and a few by the plaintiff. Before the hearing of the exceptions the following order was entered in the cause: \u201c It appearing to the court that counsel for defendants demands a trial by a jury upon the issue raised upon the exceptions to the referee\u2019s report, it is ordered by the court, the cause be continued to the next term of this court to the end that issues may be framed and that the trial by jury may be had.\u201d From the ruling of the court that defendants are entitled to a jury trial upon the issues raised, the plaintiff appeals.\nIn considering the import of the record which directs a continuance to the end that a jury trial may be had, we have had some hesitancy in sustaining the appeal, certainly none lies from an order of continuance, and the purpose for which it is made does not change its character-as a simple adjournment of the further hearing to another term. State v. Lindsey, 78 N. C., 499; Isler v. Dewey, 79 N. C., 1. But upon a fair and reasonable construction of the record, we think it must be understood to mean that the defendants\u2019 motion was allowed and the continuance follows as necessary to give effect to the ruling. The point then presented is the right of the defendants to demand a jury trial of disputed facts arising out of exceptions to the referee\u2019s report.\n\u201cIn a case involving complicated accounts,\u201d says Pearson, C. J., delivering the opinion of the court in Klutts v. McKenzie, 65 N. C., 102, \u201c the mode of trial under C. C. P. is by reference and the proceeding is in analogy to a reference to the clerk and master in the old mode of equity procedure, and his report is to be finally disposed of on exceptions,\u201d and a jury trial could not be demanded. Aside from the force of this authority, we have already intimated that the effect of the recent constitutional changes may be to restore the power exercised by the courts of equity under the former system of disposing of exceptions to a referee\u2019s report without the intervention of a jury. Overby v. B. & L. Association, 81 N. C., 56; Jones v. Boyd, 80 N. C., 258, and Hettrick v. Page, ante 65.\nBut the reference here is by an agreement of the parties expressed upon its face, and the right to havea jury pass upon the facts, if otherwise it could have been claimed, has been waived. Armfield v. Brown, 70 N. C., 27; Green v. Castlebury, Ibid., 20; Atkinson v. Whitehead, 77 N. C., 418, and Overby v. B. & L. Association, supra.\nIt must therefore be declared there is error in the order allowing the defendants\u2019 demand for a jury, and it is reversed. The record is very voluminous and much of it wholly unnecessary in elucidating the point presented in the appeal. In accordance with Rule 4, Costs of Appeal, the clerk will not tax the appellee with the cost of that part of the transcript sent up which consists of the referee\u2019s report and the exhibits and evidence accompanying it.\nError. Reversed.", "type": "majority", "author": "Smith, C. J." } ], "attorneys": [ "Mr. R. B. Peebles, for plaintiff.", "Messrs. Gilliam & Gatling, for defendant." ], "corrections": "", "head_matter": "JAMES W. GRANT Adm\u2019r v. WILLIAM A. REESE Adm'r.\nConsent Reference \u2014 Right to Jury Trial.\nA reference by consent is a waiver of the right to a trial by jury; and . a^ter the filing of the referee\u2019s report, it is error to continue the cause in order to allow time for a jury trial.\n(State v. Lindsey, 78 N. 0., 499; Isler v. Dewey, 79 N. C., 1; Klutts v. McKenzie, 65 \u00cdT. C., 102, Overby v. B. %\u2022 L. A., 81 N. C., 56; Jones v. Boyd, 80 N. C., 258; Armfield v. Brown, 70 N. C., 27; Oreen v. Castle-bury, Id., 20; Atldnson v. Whitehead, 77 N. C., 418, cited and approved )\nAppeal.from an Order made at Pall Term, 1879; of NobthamptoN Superior Court, by Avery, J.\nThe facts constituting the basis of the decision in this court are stated in its opinion. The plaintiff appealed from the judgment of the court below.\nMr. R. B. Peebles, for plaintiff.\nMessrs. Gilliam & Gatling, for defendant." }, "file_name": "0072-01", "first_page_order": 96, "last_page_order": 99 }