Opinion
(Filed 15 November, 1916.)
Appeal and Error — Reference — Exceptions Sustained — Evidence.
The order of the trial judge overruling a finding of fact by the referee is conclusive on appeal when there is evidence to support such order, and there is no exception because of the lack of evidence thereon.
CIVIL ACTION tried before Webb, J., at June Term, 1916, of ROCKINGHAM.
W. R. Dalton, P. W. Glidewell, and King Kimball for plaintiffs.
R. G. Parker and J. C. Buxton for defendant.
This is an action to restrain a sale under a certain trust deed executed by the plaintiffs to the defendants, and for an accounting.
The action was referred by consent, and upon the report of the referee being filed the plaintiffs excepted thereto, and particularly to the disallowance as a credit of an order for $860, issued on 28 July, 1910, in favor of the plaintiff E. D. Miller, by two officers of the Grand Lodge, J. S. Fitts, president, and R. W. Brown, secretary, to cover salary and office expenses.
His Honor overruled all of the exceptions to the report except the one to the refusal to allow the credit of $860, which he sustained, and in connection therewith he made the following finding: "That (499) the order for $860, dated 28 July, 1910, was duly issued by the Grand Lodge for salary and office expenses of the said plaintiff E. D. Miller; and that the said E. D. Miller is entitled to have the said order for $860 of said date credited on the deed of trust and notes mentioned in the pleadings. And the court finds as a fact that the said order was duly issued and has never been paid to the said E. D. Miller and is a valid claim against the defendants."
Judgment was rendered upon the report of the referee as amended by the above finding of fact, and the defendants excepted and appealed.
The judgment appealed from shows that the judge of the Superior Court had the benefit of argument and that he carefully considered the evidence taken by the referee, and when this course is pursued his findings of fact are conclusive upon us, in the absence of an exception that there is no evidence to support the finding, and we find no such exception. Wynn v. Bullock, 154 N.C. 382; Culver v. Jennings, 157 N.C. 565.
We have, however, examined the record and are of opinion there is evidence to sustain the finding as to the order of $860, and to support the contention of the plaintiffs that the order of 21 July, 1911, for $854.84 was not given in substitution for the first order.
Affirmed.