Howell v. Ray

• Decision Date: 30 June 1880
• Citation: 83 N.C. 558
• Court: North Carolina Supreme Court
• Parties: WILLIAM HOWELL v. LARKIN RAY.

83 N.C. 558

WILLIAM HOWELL

v.LARKIN RAY.

Supreme Court of North Carolina.

June Term, 1880.

CIVIL

ACTION to recover Land tried at Spring Term, 1880, of WATAUGA Superior Court before Gilmer J.

The issues were found by the jury in favor of the plaintiff, judgment, appeal by the defendant.

Mr. G. N. Folk, for plaintiff .

No counsel for defendant.

ASHE, J.

The statement of the case contains a voluminous mass of matter, in eighteen pages of legal cap embracing a great deal of evidence taken on the trial, both oral and written, which has no pertinence to the points raised by the record.

There was no exception to the charge of His Honor, and the only exceptions taken on the trial were, first, to the introduction of the transcript from the court of equity for the county of Ashe, of a petition to sell the land of Amos Howell including that in controversy, for the purpose of partition among his heirs, upon the ground that it did not show that the court was opened and held at Ashe, or that any judge presided therein at the time when the ex parte petition was alleged to have been filed; and secondly, because the sale did not describe the land; that it was only described as being on Elk river, as set forth in the report of the master and the other proceedings of the court of equity.

It is only necessary for us to consider the first exception, as the ruling of His Honor on that was erroneous and entitles the defendant to a venire de novo. The transcript from Ashe was an important link in the chain of the plaintiff's title, and it has been expressly decided in this state that every record must set forth before what person or persons the proceedings were had, or by whose authority the record was made. The doctrine was so declared by RUFFIN, C. J., in the case of the State upon the relation of Hughes v. King, 5 Ired., 203, and approved in State v. Ward, 8 Ired., 530.

In his opinion in King's case the Chief Justice said, “the objection when taken in the case of the State v. Lewis, 3 Hawks, 410, and State v. Kimborough, 2 Dev., 431, was overruled, not because it was deemed untenable in law, but because it was untrue in point of fact. There, the record showed that the court was held by a gentleman whom this court knew, ex officio, to be a judge of the superior courts of law, being the courts of the highest criminal jurisdiction in the state; therefore the court held that the record was sufficient in stating his presence, without setting forth his...