Brooks v. Austin

• Decision Date: 28 February 1886
• Citation: 94 N.C. 222
• Court: North Carolina Supreme Court
• Parties: H. M. BROOKS, et al. v. J. L. AUSTIN, et al.

94 N.C. 222

H. M. BROOKS, et al.

v.J. L. AUSTIN, et al.

Supreme Court of North Carolina.

February Term, 1886.

SPECIAL PROCEEDING heard on appeal from the Clerk, by Shipp, Judge, at Fall Term, 1885, of the Superior Court of UNION county.

This special proceeding was brought for the purpose of having the land described in the petition sold for partition among the heirs-at-law of D. B. Austin, deceased. In the petition and the answers thereto, reference is made to an ante-nuptial agreement, made by and between the said Austin, and the feme defendant, Catherine Helms, who was his wife, and surviving widow, and who, since his death, has intermarried with the defendant A. M. Helms, but the same is not made a part of the pleadings, nor is it set forth as an exhibit thereto. It was, however, considered and construed by the Clerk in his judgment and order directing a sale of the land. He held that it was valid and operative, and excluded the said Catherine from all rights of dower in the land, and that she was entitled only to a specified interest therein in lieu of dower, year's support and share in the personal estate. From this judgment, she and her present husband appealed to the Judge, who upon consideration “sustained and approved” the rulings of the Clerk, and from his decision they appealed to this court.

Mr. D. A. Covington, for the plaintiffs .

Mr. J. T. Strayhorn, for the defendants .

MERRIMON, J. (after stating the facts).

The counsel for the appellants excepted to the ruling of the Clerk, and likewise that of the Judge, in respect to the ante-nuptial agreement mentioned, but it does not appear affirmatively how the latter came before the court. A copy of the agreement is sent up as a part of the transcript of the record.

In this Court, the counsel for the appellees moved, at the present term, to affirm the judgment, upon the grounds that no error is assigned in the record, and there is no statement of the case on appeal for this Court.

The proceedings are certainly very informal, and do not present the exception to the decision of the Court appealed from, with precision; but we are of opinion that the grounds of error assigned informally, appear sufficiently in the record, to enable us to pass upon their merits.

Regularly, when an appeal is taken from a decision of the Clerk, acting as and for the Court, to the Judge thereof, he should “prepare a statement of the case, of his decision, and of the appeal,” and sign the same. This...