In all issues of fact joined in any court, the parties in any civil case may waive the right to have the issues determined by a jury, in which case the finding of the judge upon the facts shall have the force and effect of a verdict by a jury.
Cross References. - As to right of jury trial in certain civil cases, see N.C. Const., Art. I, § 25.
As to jury trial and waiver thereof, see G.S. 1A-1, Rules 38 and 39.
As to findings by the court, see G.S. 1A-1, Rule 52.
As to waiver of jury trial in cases tried by reference, see G.S. 1A-1, Rule 53.
History Note. - The provisions of this section are similar to those of Art. IV, § 12, Const. 1868, as that article was rewritten in 1962.
Legal Periodicals. - For article, "Toward a Codification of the Law of Evidence in North Carolina," see 16 Wake Forest L. Rev. 669 (1980).
CASE NOTES
Editor's Note. - Some of the cases cited below were decided under former Art. IV, § 12, Const. 1868, as rewritten in 1962, and under corresponding provisions of former Art. IV prior to its 1962 revision.
The right to trial by jury in civil cases may be waived. Chesson v. Kieckhefer Container Co., 223 N.C. 378, 26 S.E.2d 904 (1943); Simmons v. Lee, 230 N.C. 216, 53 S.E.2d 79 (1949).
Manner of waiver of jury trial is controlled by statute. Holmes Elec. Co. v. Carolina Power & Light Co., 197 N.C. 766, 150 S.E. 621 (1929). See also, Green Sea Lumber Co. v. Pemberton, 188 N.C. 532, 125 S.E. 119 (1924).
Waiver by Agreement. - Where case on appeal recited that the parties agreed that the court might render judgment out of term and out of the district, and the judgment recited the same, appellant's contention that trial by the court had not been agreed upon could not be sustained, since trial by jury would be impossible under the agreement that judgment might be rendered out of term and out of the district. Odom v. Palmer, 209 N.C. 93, 182 S.E. 741 (1935).
Waiver by Consent to Pay Additur. - While it may be suggested that the practice of additur deprives a defendant of his constitutional right to a jury trial, the obvious answer is that the defendant can waive that right, which he does when he consents to pay the additur, since in this State the parties to a civil action have a right to waive a jury trial. Caudle v. Swanson, 248 N.C. 249, 103 S.E.2d 357 (1958).
Attachment Proceedings. - In attachment and other ancillary proceedings it is competent for the court to find the facts from the affidavits and other evidence; and a party consenting to this mode of trial cannot afterwards demand a jury trial. Pasour v. Linberger, 90 N.C. 159 (1884).
Special Proceeding to Establish Boundary Line. - As to defendant's waiver of jury trial by failure to tender pertinent issues, see Simmons v. Lee, 230 N.C. 216, 53 S.E.2d 79 (1949).
Party with Right to Traverse Allegations Cannot Be Deprived of Jury Trial. - A party charged with the maintenance of a public nuisance has a right to traverse the factual allegations of the complaint. If he does so, he cannot be deprived of his right to a jury trial on the issues raised by the pleadings. State ex rel. Bowman v. Malloy, 264 N.C. 396, 141 S.E.2d 796 (1965).
It was error for trial court to determine issues of fact raised by the pleadings in the absence of waiver of the constitutional and statutory right to a trial by jury, there being no question of reference. Sparks v. Sparks, 232 N.C. 492, 61 S.E.2d 356 (1950).
Trial judge's findings of fact based upon a misapprehension of applicable law will be set aside on the theory that the evidence should be considered in its true legal light. Security Ins. Group v. Parker, 289 N.C. 391, 222 S.E.2d 437 (1976).
Judge Had No Authority to Affirm Order of Assistant Clerk which Effectively Determined Issue of Fact. - Where there was nothing in the record to indicate that petitioner and respondent waived their constitutional and statutory rights to have the issue of fact joined on the pleadings tried by a jury, and there was no question of reference, the judge had no authority to enter an order affirming the order of the assistant clerk of the superior court, which in effect was a determination by the judge of the issue of fact raised by the pleadings and a finding by him that money deposited in the office of the clerk of the superior court was funds belonging to a decedent and an order that said money be distributed to the administrator c.t.a. of her last will and testament. In re Estate of Wallace, 267 N.C. 204, 147 S.E.2d 922 (1966).
Findings of Trial Court Are Conclusive. - Where a jury trial is waived, the findings by the court upon conflicting evidence are conclusive under this section, and are not subject to review upon appeal. Barringer v. Wilmington Sav. & Trust Co., 207 N.C. 505, 177 S.E. 795 (1935).
When the right to a jury trial is waived, the facts found by the judge have the force and effect of a verdict by a jury. Upon appropriate assignments of error the Supreme Court may examine the evidence to ascertain if there is any to support the verdict of a jury. It may likewise, upon appropriate assignments, ascertain if the verdict is sufficient to support the judgment, but it cannot enlarge or diminish findings which constitute the verdict. Cauble v. Bell, 249 N.C. 722, 107 S.E.2d 557 (1959).
The Supreme Court has the right to review findings of fact made with respect to interlocutory orders denying or granting injunctive relief. However, where the judgment is a final determination of the rights of the parties, the mere fact that equitable (injunctive) relief is granted gives the Supreme Court no authority to modify findings determinative of issues of fact raised by the pleadings. Cauble v. Bell, 249 N.C. 722, 107 S.E.2d 557 (1959).
Applied in Williams v. Williams, 13 N.C. App. 468, 186 S.E.2d 210 (1972); Hinson v. Hinson, 17 N.C. App. 505, 195 S.E.2d 98 (1973); Superior Foods, Inc. v. Harris-Teeter Super Mkts., Inc., 288 N.C. 213, 217 S.E.2d 566 (1975); Whitaker v. Earnhardt, 26 N.C. App. 736, 217 S.E.2d 125 (1975).
Cited in Branch v. Branch, 282 N.C. 133, 191 S.E.2d 671 (1972).