The opinion
MacRae, J.:
It will he noted that the order appointing a receiver and referee has all of the elements of a submission to arbitration under order of Court. The referee is to determine all matters between said G. E. Brown and the plaintiff, growing out of their copartnership dealings. In the same order lie is required, as receiver, to sell the property, collect the assets, and pay out the proceeds according to the rights of the parties as determined by himself as referee. He is to report bis action to the next term of the Court, to be entered as the judgment of the Court. The order is by consent of parties, and provides for a final determination and judgment accordingly. It is not unlike the reference in
Gudger
v.
Baird,
66 N. C., 438 , in which the order is in these words: “ This case is referred to W. M. Cocke, who shall summon the parties before him and hear the case, and his award shall be a rule of Court.” This was held to be a reference to arbitration instead of a reference under
The Code,
the essential difference between which proceedings is pointed out in
Keener
v.
Goodson,
89 N. C., 273 , citing several other authorities. Whether it were a reference by consent under
The Code
or a reference to arbitration, the findings of fact would be final under the terms of this order. But in either case all parties are entitled to notice of the time and place of the hearing. Morse on Arbitration, 116
et seq.
It is contended on the one side that notice was duly given, and that both parties appeared and were present at the hearing, and this is strenuously denied on the other, and
*157
many affidavits are filed
pro
and
con.
This is a matter for the decision of the Judge below, in which he may, if he chooses, have the aid of a jury. There is no finding of fact by his Honor upon this question. He treats the reference as under
The Code,
and sets aside the report and account, refusing to remove the referee. We think that in this there was error.
The case must be remanded, in order that the Judgfe below may find the facts whether the parties were duly notified of the time and place of hearing, or whether they appeared and the case was duly heard before the report of the arbitrator was filed, for upon this question it depends whether the award shall stand or be set aside.
Remanded.