After stating the case: The statutes under which this proceeding was brought and conducted to final judgment seem to provide for an appeal at two stages thereof, one, under Public Laws of *Page 508 1909, ch. 442, sec. 8, when the drainage district has been laid off, and another, under sec. 17, when the time for an adjudication upon the final report of the viewers has arrived. J. W. Bizzell did not appear and except to either of these reports, the preliminary or the final, and the court, therefore, erred in allowing him to do so upon the application of the plaintiff for an additional issue of bonds. He could except then and be heard only as to any matters involved in the petition for the additional issue of bonds which affected his interests, but he cannot be permitted to go back of this and change the formation of the district and the classification and assessments already made, by attacking the reports of the engineer and viewers, and withdrawing a large part of his land from the district, especially after bonds had been issued on the basis of those reports and their confirmation, and sold to innocent holders. It would be unjust to them, if not illegal, as it would greatly impair their security, there being nothing substituted for the land thus taken out of the district, to preserve the value of that security. Broadfoot v.Fayetteville, 124 N.C. 478; McCless v. Meekins, 117 N.C. 35. But whether or no the bondholders could object, if they were parties, upon the ground that their rights would be, in a legal sense, impaired, it is sufficient to say that it would be unjust to them, and there is (439) nothing in the statutes which allows an exception as to matters already settled at such a late stage in the proceedings. This view is sustained by the following decisions on similar statutes: Zeigler v.Gilliatt, 105 N.E. 707; Trigger v. Drainage District, 193 Ill. 230;Hatcher v. Supervisors, 145 N.W. 12; Allen v. Drainage District, 64 So., 418.
Exceptions and appeals are provided for in the statutes, and the time fixed when they must be noted. As J. W. Bizzell did not appear and except at that time, it must be assumed that he was satisfied with what had been done, and waived his right. He can file exceptions to any action taken in regard to the additional issue of bonds, but not to the former proceedings, which are past and closed as to him. There was error, therefore, in allowing him to answer and except as he did. This ruling, though, does not apply to J. S. Wooten and associates, as they excepted when the final report was filed and appealed under sec. 17 of the statute, which was allowable thereunder as that section is construed in Shelton v. White,163 N.C. 90. The first bonds were issued after the exceptions were filed and the appeal taken, and, therefore, they were purchased with full knowledge of the rights of these parties in the further progress of the case. The latter, for this reason, were entitled to be heard, as they had excepted and appealed and properly reserved their rights from time to time. *Page 509
But we think there was error in confirming the report of the referees without first passing upon the serious question of fact as to whether there has been any legal report from them. One of the referees, W. D. Grant, filed what is called a "minority report," in which he agrees with some of the findings of his other two associates, and dissents from others, and then states that the referees met and examined the premises, and, after hearing and considering the evidence, they failed to agree, no two of them being able to do so, and that then they adjourned with the understanding that they would meet again for further discussion of the matters and try to reach a decision, but no such meeting was ever held, and he knew nothing of any meeting, if there was such, or of any agreement between the other two referees, until a report they had already signed was presented to him by one of them, and he refused his assent to it and did not sign it. If this be true — and the court should have ascertained and decided whether or no it was true — there was no valid report made by the referees. The law contemplates that they shall deliberate together and as a body, and not that two of them shall do so, apart from the third one, and this is what is required by the terms of the consent order of reference, as we construe it, the cause having been "referred to the aforesaid three referees for trial and determination according to law."
It is true that there is provision in the order of reference that J. K. Warren (whose place was taken by Mr. Grady with the same powers) and either one of the other referees might proceed to (440) hear and determine the cause in the absence of the third referee; but we think it perfectly clear that what was intended, and what is expressed in this clause, is that the referees should have notice of any proposed meeting, and if any one of them, other than Mr. Warren or Mr. Grady, failed to come, the remaining two could proceed to execute the order without him. This was done to prevent any one of the referees from defeating the object of the reference by willfully absenting himself after receiving notice of a meeting. It could not mean that two of the referees might ignore the third and take the matter into their own hands. This would be an unwarranted construction of the order, as the reference was to "all three of them." If it is construed as we have indicated it would be a reasonable provision, but if given the other meaning it would be very unreasonable, and the reference would practically be only to two of them. We cannot think that the court and the parties intended to give this arbitrary discretion to two of the referees. It is to be borne in mind, also, that each of the parties selected one of the referees, and the object in doing so would be defeated if any other meaning were given to the order than the one adopted by us. *Page 510
By two of them meeting together and virtually expelling the third, an obvious advantage would accrue to the party whose appointee was associated with the umpire in hearing the case and making the report. Besides, when these referees adjourned their last meeting it was done with the distinct understanding that they should meet again, that is, all of them, and try to decide the case, and this understanding would be disappointed if two of them were allowed to act to the exclusion of the third one. The court should, therefore, have found the facts in regard to the manner of holding the meeting of the referees, and should not have confirmed the report until this was done and it had been ascertained that the absent referee had been duly notified of the meeting and stayed away. If he was not notified and took no part in the meeting the report was an invalid act. For this reason the order of confirmation will be set aside. But it may be well to consider some other questions raised, as they may be presented again.
The exceptions to the report based on other grounds are not tenable. The two referees have found the facts upon evidence, and their findings have been approved and adopted by the court. In such a case we do not review the findings here. Mirror Co. v. Casualty Co., 153 N.C. 373;Bailey v. Hopkins, 152 N.C. 748; Williamson v. Bitting, 159 N.C. 321. There is no ground for the exception that the judge did not consider the evidence and questions involved before signing the judgment, as the judgment itself states to the contrary. Thompson v. Smith, 156 N.C. 345, does not, therefore, apply.
(441) If the Superior Court, with the aid of a jury, or referees, appointed by consent of the parties, cannot change the final report of the viewers, we do not see why the right to except thereto and appeal to that court was given in sec. 17 of the statute. Without such a power an appeal would be nugatory. There is nothing to review by an appeal except the formation of the district and the assessment of the lands embraced within it. When an assessment roll is prepared and the final report is confirmed without any appeal therefrom the method of reclassification, as stated in the plaintiff's brief, would, of course, be the only one by which a change in the reported classification could be made. It is not to be overlooked that the terms of the order of reference were very broad and all-inclusive, submitting to the referees for hearing and determination "all matters in controversy" arising upon the exceptions, and this embraced every question that they have tried and decided. We do not understand how appellants can except to the reference of certain questions, such, for instance, as the one mentioned in their fourth exception, when they are the questions in controversy, and they consented to the reference. It was the reference of the parties, made at their request and by their consent with the sanction of the court, *Page 511 and was intended to settle every disputed matter. Besides, J. S. Wooten and his copetitioners had duly excepted and appealed, and their right to raise the questions which were made by their answer to the petition was thereby preserved, and it will be found on a comparison of their exceptions with their answers that they practically present the same questions, except as the answer refers to other questions germane only to the application for an issue of additional bonds.
The referees found the facts against the appellants, it being admitted that there was evidence to support those findings, and the judgment would naturally follow from them, if the report is found to be a valid one.
After a careful review of the entire record we have reached the conclusion that there was error as to the J. W. Bizzell matter, except in the particular we have stated, and his right to be heard should be confined to the application for a second issue of bonds. There was also error in confirming the report until the validity of the action by the two referees and of their report was first ascertained, and, on account of this error, the court below will set aside the said order and proceed to determine upon the validity of the report, and thereafter further proceed agreeably to law.
Error.
Cited: In re Inheritance Tax, 172 N.C. 175 (4f); Taylor v. Meadows,175 N.C. 373 (4g); Mitchem v. Drainage Com., 182 N.C. 515, 517 (1f).
(442)