CUMMINGS v. SWEPSON.

the referee the facts substantially which are herein before found as facts in this case, and filing the affidavits which as exhibits accompany the affidavits of the plaintiff as part of his exceptions which are hereinbefore referred to, and accompany this case as a part of it, and also stating in substance all the facts which are embodied in the affidavit of said P. A. Cummings, plaintiff, which is filed as a part of the exceptions hereto, and which accompany this case as a part hereof, as their grounds for asking a continuance, and urged further that inasmuch as they were just concluding a five weeks' special term of the Superior Court, and beginning an additional three weeks' regular term thereof, it would do grave injustice their client in his absence to force them into a trial at that time.

6. The Court further finds as a fact that the statements contained in the said affidavit of P. A. Cummings relative to his non-attendance before the referee and his absence from the State are true. The referee ruled that plaintiff was not entitled to a continuance and required the plaintiff to proceed with the case, when his counsel stated that under the circumstances it was impossible for them to do so, in justice to their client, and that they were therefore driven to consent to a nonsuit, and the referee thereupon reported as is shown by his report.

Upon the foregoing facts and in the exercise of its discretion, the Court rendered the judgment which will be found in the papers, and accompanies this case as a part of it, re-referring the said case to said referee, to be further proceeded with according to the original order of reference, and upon the terms stated in said order, to-wit, requiring the plaintiff to pay the cost accruing from the said August Term, 1898, to and including the March Term, 1899, of said Court, and also requiring the agreement of the plaintiff that a trial

CUMMINGS v. SWEPSON.

may be had before said referee before the next term of this Court.

Messrs. Moore & Moore; Shepherd & Busbee, and Burwell, Walker & Cansler, for appellant.

Messrs. J. W. Summers and T. H. Cobb, for appellee.

FAIRCLOTH, C. J. This action was referred by consent, and on the trial day the plaintiff made affidavit that he could not try, stating his reasons. The referee required him to proceed to trial, and the plaintiff's counsel stated that in justice to his client he was driven to consent to a nonsuit. The referee filed his report, and the defendant made a motion that judgment of nonsuit be entered by his Honor, which was refused.

His Honor, upon the facts found in the exercise of his discretion, ordered that the plaintiff be relieved from his consent to nonsuit before the referee, and that the cause be remanded to the referee to proceed according to the original order.

Defendant's exception is that the Court had no power to set aside the nonsuit entered before the referee, and relies upon Boyden v. Williams, 80 N. C., 95, and Twitty v. Logan, 86 N. C., 712. Each of those cases involved a question of excusable neglect in allowing judgments to be entered at a term of the Court. The law of those cases has no application to the facts in the present case. It is a first principle that the law

must fit the facts.

The

The powers and duties of a referee are found in The Code, Section 422, and Jones v. Beaman, 117 N. C., 259. Code, Section 423, provides that the referee shall make his report to the Court in which the action is pending, and "either party may move the judge to review such report and set aside, modify or confirm the same in whole or in part, and no judg

WILLIAMSON v. COCKE.

ment shall be entered on any reference except by order of the judge."

In Boushe v. Surles, 79 N. C., 51, it was held not to be error when the judge in his discretion sets aside the reference after the report was filed, and proceeded and tried the case. See also Earp v. Richardson, 75 N. C., 84.

Upon Section 423 of The Code, and these authorities, we can have no doubt of the power of the Judge to make the orders set out in the record, and above stated. The Court retains the cause and its jurisdiction in every case of reference, with power to review and reverse the conclusions of law of the referee, and a discretion to modify or set aside the report, and his ruling in the latter respect is not reviewable unless it appears that such discretion has been abused.

Affirmed.

W. B. WILLIAMSON, Trustee of the National Bank of Asheville v. W. J. COCKE, Administrator of W. M. Cocke, Jr., and W. J. Coke, individually.

(Decided May 5, 1899).

Service of Summons-Judgment by Default-Motion to Set Aside.

1. The Code, Section 214, requires service of summons to be made by reading the same to the defendant. He, however, may waive the reading.

2. The fact that defendant supposed and believed that the action was against him as administrator, and not individually, is not such excusable neglect as entitles him to relief.

3. What constitutes service of process and whether upon a given state of facts service has been duly made, is a question for the Court. The return of the Sheriff is prima facie service, sub ject to be overcome by proof of the facts.

WILLIAMSON v. COCKE.

MOTION to vacate a judgment rendered against defendant individually at March Term, 1898, heard upon affidavits before Starbuck, J., at March Term, 1899, of BUNCOMBE Superior Court. The motion was allowed, and plaintiff appealed.

The facts found by his Honor are stated in his Judgment subjoined:

Judgment.

NORTH CAROLINA-BUNCOMBE COUNTY.

Superior Court-March Term, 1899.

This cause coming on to be heard before Starbuck, J., upon motion of defendant to vacate the judgment rendered against him individually at March Term, of 1898, of this Court, upon consideration of the affidavits, the Court finds that the judgment ought to be vacated was rendered at the return term of the summons, to-wit, at the March Term, 1898, of said Court. That the complaint in the action was not filed within first three days of the said return term, but upon the fourth day the Court granted leave to the plaintiff, which appears upon the minutes of the term, to file his complaint as of the first three days of said return term, and the complaint was filed pursuant to this permission.

The Court further finds that the statement of the defendant relative to the purported service of summons upon him is correct, to-wit, that the summons in the above entitled action, which purports to have been served upon him by W. M. Worley, sheriff of Buncombe County, per Robert Greenwood, deputy sheriff, by reading said summons to him, was never served upon him in such manner; that the facts in regard to the purported services are as follows:

That at some time defendant was accosted by said Green

WILLIAMSON v. COCKE.

wood on West Court Square, in the city of Asheville, and near the entrance to the office of Dr. C. V. Reynolds, and told by said Greenwood that he had a summons for him. The defendant was ascending stairway that leads to the office of Dr. Reynolds, and looked back and upon a paper in the hands of said Greenwood the name of W. B. Williamson, trustee, and said, "Well, I know all about that," and turned imme diately and walked up the stairway, and saw no more of said Greenwood. Defendant at no time avoided the service of the said summons by the sheriff or his deputy, Greenwood. At the time defendant believed that the summons held by the said deputy sheriff was against him as administrator of W. M. Cocke, Jr., (deceased), and had no idea that he had been sued individually, as he had been previously told by plaintiff, Williamson, that his, said Williamson's purpose, was to put the claim of the bank, of which he was trustee, against Wm. M. Cocke, Jr., into a judgment. The said deputy, Greenwood, did not inform defendant that he was sued individually, either by reading the summons or in any other manner, and defendant's attention was never called to the summons thereafter by the said Greenwood or any other officer or person. Defendant made no appearance in the action, and had no notice of the plaintiff's motion on the 4th day of said return term for leave to file complaint as of the first three days, or of the granting of said leave or of the granting of the judgment in the action.

Defendant had no knowledge of the pending of any action against him individually. The Court further finds that the defendant sets up apparently meritorious defense, namely: that he is not indebted to the plaintiff as trustee of the National Bank of Asheville, or to said National Bank of Asheville upon any promise, express or implied, or for or on account of any dereliction or failure of duty as cashier of said