#### R. A. ADAMS and Wife, CARRIE ADAMS, v. J. A. WOODIE.

(Filed 26 February, 1931.)

1. Reference A a — Before mailing final report referee may reopen case upon proper notice to parities.

A referee bas power to reopen a case still pending before bim without final report made by bim, with proper notice given the parties, and to permit tbe plaintiff to offer additional evidence, and when tbe evidence is then sufficient, bis award in tbe plaintiff’s favor sustained by the trial court will be sustained by tbe Supreme Court on appeal.

*4082. Same — Under facts in this case held: defendant was not prejudiced hy shortness of referee’s notice of reopening the case.

Conceding in this case that the referee should have given ten days notice to the defendant of his intention to reopen the case before him, his exception only to the power of the referee to reopening the case is insuffi- . eient to show he was prejudiced on that account, and the judgment rendered adverse to him by the lower court will stand on appeal.

Civil actioN, before *Harding, J.,*at March. Term, 1930, of Watauga.

Plaintiffs instituted an action for damages against the defendant for trespass in entering upon the lands of plaintiffs and cutting and removing timber therefrom. The land in dispute was about six acres. The defendant denied the trespass and cutting of timber upon any land owned by the plaintiffs. The judge of the Superior Court referred the matter to a referee to find the facts and state his conclusions of law. The referee heard evidence on 11 January, 1930, and the plaintiffs offered evidence to sustain the allegations in the complaint. At the conclusion of the evidence the defendant made a motion for nonsuit, which was overruled. Thereafter, on 20 January, 1930, the referee made an order to reopen the case and take further evidence on 24 January, 1930. This notice was mailed by the referee to the attorneys for the defendant four days prior to the hearing. When the hearing was resumed on 24 January, 1930, the attorneys for defendant made a special appearance and moved “to strike out the order allowing plaintiffs to introduce further testimony in the cause on the grounds that the same is inequitable, contrary to good practice, contrary to law, and not within the discretion of the referee.” The motion was overruled and the plaintiff offered further evidence. The referee filed a report finding as a fact that the plaintiffs had been in continuous possession of the land in dispute for thirty years or more, and that said plaintiffs had been damaged by the defendant in the sum- of $200. Exceptions were filed by the defendant and the matter was thereafter heard by Harding, J., who confirmed the report of the referee, and the defendant appealed.

*Trivetie <& Holshouser for plaintiffs.*

*Bingham, Linney & Bingham and W. B. Lovill for defendant.*

Per Curiam.

At the second hearing before the referee the plaintiffs “mended their lick” and offered sufficient evidence of possession of the premises in controversy to support the finding of fact by the referee. *Bryan v. Spivey,*109 N. C., 57, 13 S. E., 766; *Berry v. McPherson,*153 N. C., 4, 68 S. E., 892.

At the time the referee reopened the hearing no final report had been made and the entire matter was pending before the referee. Four days *409notice of reopening tbe case was given by tbe referee instead of ten days. And even if it be conceded tbat, under tbe circumstances, ten days notice should bave been given, notwithstanding it does not appear tbat tbe defendant has suffered any barm by reason thereof, because tbe defendant made no motion before tbe referee to tbe effect tbat be did not bave full opportunity to present any evidence which be deemed pertinent, nor did be make any complaint in tbe Superior Court upon tbe bearing before tbe trial judge tbat be bad been deprived of an opportunity to fully present bis cause and tbe evidence to sustain it.

Hence tbe Court is persuaded tbat tbe judgment rendered should stand. *Coleman v. McCullough,*190 N. C., 590, 130 S. E., 508.

Affirmed.