Hartsfield v. Bryan

• Decision Date: 05 March 1919
• Docket Number: 171.
• Citation: 98 S.E. 379,177 N.C. 166
• Parties: HARTSFIELD v. BRYAN ET AL.
• Court: North Carolina Supreme Court

98 S.E. 379

177 N.C. 166

HARTSFIELD v. BRYAN ET AL.

No. 171.

Supreme Court of North Carolina

March 5, 1919

Appeal from Superior Court, Craven County; Whedbee, Judge.

Proceeding for partition by J. L. Hartsfield against James A. Bryan and others. From a judgment overruling a demurrer to a petition to set aside judgment ordering lands sold, the petitioner appeals. No error.

A complaint will be sustained as against demurrer, if any part presents facts sufficient to constitute a cause of action, or if facts sufficient for that purpose can be gathered from it under a liberal construction of its terms.

This is a petition, or written motion, in the above-entitled special proceeding for partition, to set aside the judgment rendered therein on February 6, 1900, by the clerk of the superior court, by which the lands were ordered to be sold. The sale was made to James A. Bryan, one of the defendants, and confirmed by the clerk.

The petition to set aside the judgment is entitled as of the original cause, but is addressed to the clerk of the superior court of Craven county, as follows:

"Your petitioner, R. E. Whitehurst, attorney at law and in fact for and in behalf of W. I. Hall and many others (naming them), heirs at law of John Haywood, deceased, and on behalf of all other persons having a like interest as heirs of John Haywood, deceased, respectfully petitions the court as follows:"

Then follows a statement of the facts upon which the motion is based, it being alleged, among other things, that the publication of the summons was defective, and that the judgment was not indexed and cross-indexed, as required by the statute, and the petitioners have had no notice of it until recently. It is then further alleged:

"That your petitioner, R. E. Whitehurst, is attorney at law and in fact for a portion of the heirs at law of John Haywood owners of more than one-third (1/3) of the undivided interest in the estate of John Haywood, and that this petition is brought on their behalf as well as on the behalf of other persons having a like interest with them."

The defendant James A. Bryan demurred to this petition upon the grounds:

1. That said petition is deficient in law for that it appears on its face--

(a) It does not give any term of court or any court in the caption to which it is applicable.

(b) That it is not made or filed in the name of the real parties in interest, to wit, the heirs of John Haywood deceased.

(c) For that it appears that it is filed by R. E. Whitehurst an attorney at law and in fact, and that the said R. E Whitehurst has no interest in the subject-matter and is not the real party in interest.

2. That it appears on the face of said complaint that it does not state facts sufficient to constitute the cause of action.

(1) For that it does not appear in any allegation of the complaint that R. E. Whitehurst, the petitioner, is the real party in interest.

(d) For that it does appear on the face of the complaint that R. E. Whitehurst, the petitioner, is not the real party in interest and has no interest in the subject-matter.

(e) For that it does not appear in any of the allegations of the complaint that the real parties in interest are filing the petition or making the application.

(f) For that it is not alleged in any allegation of the complaint that the persons named in the paragraph immediately preceding the first allegation are the heirs at law of John Haywood, and the heirs at law of the particular John Haywood referred to in the title of the cause, or are in any other respect owners of the John Haywood interest in the lands referred to in the petition.

The clerk overruled the demurrer, and the defendant James A. Bryan appealed to the superior court, and in that court the judgment of the clerk was affirmed, and the same defendant appealed, and assigned the overruling of his demurrer as error.

C. R. Thomas and R. E. Whitehurst, both of Newbern, for appellant.

Ward & Ward, of Newbern, for appellees.

WALKER, J. (after stating the facts as above).

There are no terms of court where a proceeding is pending before the clerk. He has no stated terms or sessions, and each case has its own return day. The petition is therefore sufficiently entitled, if any defect of the kind indicated would be the subject of demurrer.

We are of the opinion that there are sufficient allegations as to the real parties in interest and as to those who...