Herbin v. Wagoner

• Decision Date: 14 April 1896
• Parties: HERBIN et al. v. WAGONER.
• Court: North Carolina Supreme Court

24 S.E. 490

118 N.C. 656

HERBIN et al.

v.WAGONER.

Supreme Court of North Carolina.

April 14, 1896.

Certiorari to Compel Trial Court to Settle Case —Partition—Erroneous Allotment —Bona Fide Purchaser.

1. Where the counter case on appeal has not been served by the sheriff, or service accepted in writing as required by statute, certiorari will not issue to compel the trial court to settle the case, on affidavit that service thereof was waived, where appellant denies the waiver, and the agreement of waiver is not, as required by Sup. Ct. Rule 39 (12 S. E. ix.), in the record, or on file in the case on appeal.

2. Where a decree in partition by mistake allotted part of the land to the wrong party, one who, without notice of the mistake, subsequently purchased the fame at a judicial sale by the administrator of the allottee to raise assets, acquired a valid title, as against the other parties to the partition, where the partition decree showed that the court had full jurisdiction.

Appeal from superior court, Rockingham county; Norwood, Judge.

Petition by W. H. Herbin and others against Mary E. Wagoner to recover land erroneously allotted to defendant's remote grantor by a decree in partition, and held by defendant as a bona fide purchaser for value. From a judgment for plaintiffs, defendant appeals. Reversed.

Dillard & King and Shepherd & Busbee, for appellant.

John A. Barringer, for appellees.

FAIRCLOTH, C. J. The defendant (appellant) had her case on appeal duly served on plaintiff's attorney, who prepared his exceptions thereto, and returned the same, with his copy, to an attorney supposed by him to represent the appellant, without any acceptance or service by the sheriff. These papers remained with said attorney, and the papers were never sent to the judge who tried the case, and no case was settled for this court by the judge. The appellant had the transcript docketed in this court with her case on appeal. The plaintiffs (appellees) now come and move for an order for a writ of certiorari to be issued to the lower court to settle the case, alleging, on affidavit, among other things, that said attorney did represent defendant in the superior court, that service was waived, and an agreement (verbal) that the papers should be sent to the judge to settle the case, etc. These allegations, by affidavit, are denied by the attorneys alleged to have represented the appellant in the superior court.

This court would be embarrassed with the unpleasant duty of finding facts at issue between members of the bar but for the statute, and rules and decisions of this court to the effect that a case on appeal or counter case must be served by the sheriff, unless service be accepted in writing, and made a part of the record. This case illustrates the reasonableness of such rules. Assuming, then, for the sake of argument only, that the plaintiff's allegations are true that the counsel represented the defendant, we cannot grant his petition, for the reason that the waiver is denied, and the counter case was neither duly served nor service accepted in writing. State v. Price, 110 N. C. 599, 15 S. E. 116; Forte v. Boone, 114 N. C. 176, 19 S. E. 632; Sondley v. City of Asheville, 112 N. C. 694. 17 S. E. 534; Graham v. Edwards, 114 N. C. 228, 19 S. E. 150, and cases cited; Sup. Ct. Rule 39.

It appears: (1) That certain lands were partitioned among the plaintiffs, and confirmed by decree of the court, and that, in the division, a mistake was made by the draftsman of the commissioners'...