Haddock v. Stocks
| Decision Date | 14 October 1914 |
| Docket Number | 170. |
| Citation | 83 S.E. 9,167 N.C. 70 |
| Parties | HADDOCK ET AL. v. STOCKS ET AL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Pitt County; Daniels, Judge.
Proceedings for partition by J. J. Haddock and others against Nonie Stocks and others. From an order of partition, which set off to defendants a share in the land, plaintiffs appeal. Affirmed.
Where issue in partition is joined as to the right of one of the claimants to share as a tenant, the clerk must transfer the case to the civil docket for jury trial; the statute being mandatory.
Special proceeding for partition of the lands of Martha Louisa Cox tried upon these issues:
(1) Was Henry Haddock, the father of the defendant Nonie Stocks, born out of lawful wedlock? Answer: No.
(2) If so, did Martha Louisa Cox, the testatrix, in her lifetime acknowledge and recognize Henry Haddock as the son of William Haddock, and did she recognize and treat him as her kinsman and acknowledge the relationship as his aunt, and he her nephew? Answer: _____.
His honor rendered judgment "that Henry Haddock was the lawful child of William Haddock, mentioned in the last will and testament of Martha Louisa Cox, and that Nonie Stocks the only child of Henry Haddock, is the owner of and entitled to a one-ninth undivided interest in and to the lands set out and described in item 2 of said will as the child of Henry Haddock," and further adjudging that the lands be divided between the nine parties plaintiff and defendant as tenants in common, giving to each one-ninth in severalty. The decree further appoints commissioners to make division, and provides for an accounting of the rents and profits of the lands. The plaintiffs, petitioners, excepted and appealed.
S. J. Everett and Harding & Pierce, all of Greenville, for appellants.
W. F. Evans, of Greenville, L. G. Cooper, of Henderson, and Harry Skinner, of Greenville, for appellees.
The defendants move to dismiss the appeal because the appellants have failed to comply with the well-settled rules of this court governing the assignments of error.
We think the objection to the assignments of error, except to the first four, well taken. The remaining assignments do not appear to be even an attempted compliance with the rules of this court. They do not undertake to point out in any manner the substance of the ruling assigned as error. As a sample, we quote No. 22: "Plaintiffs rely on exception 27 as it is contrary to law." We have said repeatedly that assignments of error, not stated according to the rules of this court, will be disregarded. Steeley v. Lumber Co., 165 N.C. 27, 80 S.E. 963.
The work of this court is so exacting that we cannot grope through a voluminous record to ascertain what error is complained of. In all appellate courts, the bills of exceptions or assignments of error are required to point out concisely the substance of the ruling excepted to. Failing to do so, they will be disregarded. Wheeler v. Cole, 164 N.C. 380, 80 S.E. 241. Nevertheless, in this case we have carefully gone through the entire record, and can find no error which necessitates another trial.
These nine tenants in common, arrayed as plaintiffs and defendants, are admitted in the original pleadings to be tenants in common of the lands devised by Martha L. Cox as follows:
"I give and devise and bequeath unto my brother, J. J. Haddock, and wife, Emila Augusta Haddock, and the children of my two deceased brothers, William Haddock and Henry Haddock, share and share alike, and their respective heirs forever my tract of land in Chicod township known as part of the Frederick Haddock land adjoining the lands of W. G. Tucker, Bryant Tripp and others, containing 600 acres."
The will further provided that the devisees should take per capita and not per stirpes. The only dispute was as to the share to be allotted to Nonie Stocks, the daughter of Henry Haddock, the son of the William Haddock mentioned in the will. It was claimed that he was illegitimate. That question was determined in favor of the legitimacy of Nonie Stocks' father, and settled her title to one-ninth of the lands. We have examined the rulings and charge of the court in submitting that issue, and find no reversible error in them. The question was one largely of fact, and appears to have been clearly put to the jury.
The first four assignments relate to an attempted nonsuit before the clerk, which the plaintiffs claim put an end to this action before it reached the superior court.
We are of opinion that in partition proceedings a nonsuit cannot be taken and the proceeding dismissed, except by consent of all parties before the court. When the issue was joined as to the right of Nonie Stocks to a share as a tenant in common under the statute, it was the duty of the clerk to transfer the case to the civil docket for trial by jury. He is not invested with any judicial discretion in the matter. The statute is mandatory, and the act of the clerk in dismissing the proceedings was a nullity. The superior court properly ordered a certiorari to bring the record up to term for trial. Brittain v. Mull, 91 N.C. 498.
This petition for partition was filed January 30, 1911. It alleges that all the parties plaintiff and defendant, including Nonie Stocks, are tenants in common of these lands, and asks for a partition in severalty.
The defendants Nonie Stocks and others answered, admitting the tenancy in common, and also praying for a division of the lands. On February 3, 1911, the clerk entered a decree appointing commissioners to divide the lands. The commissioners made the division and allotted the several parts to Nonie Stocks and the other plaintiffs and defendants as tenants in common, according to the decree.
The report was filed April 13, 1911, with the clerk, and Jesse Haddock filed exceptions to the report. On April 4, 1911, the plaintiffs filed an amended complaint, without any permission of court, challenging for first time Nonie Stocks' right to any share in the lands, a fact already admitted in the original pleadings, and asks a confirmation of the division already made, leaving Nonie Stocks out. She had already filed exceptions to the report of division as to the tract assigned to her. She and her husband filed an answer to the amended petition denying its allegation, and claiming her share as the daughter of Henry Haddock, the alleged illegitimate son of William Haddock.
At this stage of the proceedings, on September 6, 1911, the clerk adjudged "that the plaintiffs in this special proceeding be nonsuited, and the petition filed herein is dismissed, without prejudice, with the cost taxed against the plaintiffs," and refused to docket the case on civil issue docket for trial of the issue.
By certiorari the defendants brought the record before the superior court in term, where the case was tried upon the issues herein set out, and raised by the amended petition and the answer thereto.
In a learned opinion in McKesson v. Mendenhall, 64 N.C. 502, Justice Rodman considers the subject of nonsuit very fully and lays down the rule that a plaintiff may elect to be nonsuited in every case where no judgment, other than for costs, can be recovered against him by the defendant, and when such judgment, other than for costs, may be recovered, he cannot, and says:
"The court will not allow a plaintiff to become nonsuit to the prejudice of the...
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