Mills v. Mcdaniel

• Citation: 161 N.C. 112,76 S.E. 551
• Court: North Carolina Supreme Court
• Decision Date: 04 December 1912
• Parties: HENRIETTA MILLS. v. McDANIEL et al.

76 S.E. 551

161 N.C. 112

HENRIETTA MILLS.

v.McDANIEL et al.

Supreme Court of North Carolina.

Dec 4, 1912.

Coubts (§ 202^*)—Probate Courts—Review.

The superior court has jurisdiction to review a finding of the clerk that no proper probate bad been ever had of a deed as all other findings on matters of probate, and the superior court may ordinarily require the production of more evidence when necessary; but, where determinative issues arise on the pleadings in a procedure in probate where the adversary rights of litigants are ordinarily presented, such issues must be "transferred for trial to the next succeeding term of the superior court" under Revisal 1905, §§ 78, 114, 529, and 717, and a large latitude is allowed in the method of procedure and the extent of the relief.

[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 480-486; Dec. Dig. §, 202.*]

Appeal from Superior Court, Rutherford County; H. A. Foushee, Judge.

Proceeding by the Henrietta Mills against McDaniel and others to establish a proper probate of a deed. From a judgment of the superior court reversing a judgment of the clerk of that court in his favor, defendant McDaniel appeals. Affirmed.

R. S. Eaves and McBrayer, McBrayer & McRorie, all of Rutherfordton, for appellant.

E J. Justice, of Greensboro, J. W. Pless, of Marion, and York Coleman, of Rutherfordton, for appellee.

HOKE, J. The plaintiff, claiming the land under a deed and mesne conveyances from William Butler and his wife, Myra, instituted a proceeding before the clerk of the superior court of Rutherford county to establish and declare a proper probate of said deed, and alleged that this probate and privy examination had been duly taken, but the printed and written form showing this had become detached from the deed in some way and lost or destroyed. On the original hearing before the clerk there was finding and adjudication by that officer that no proper probate had ever been had, and on appeal this finding and adjudication was affirmed by the superior court and again affirmed in this court. See case 155 N. C. 249, 71 S. E. 339. Pending a petition to rehear, and on application formally made, another hearing was allowed on account of newly discovered evidence. And this order having been properly certified, the clerk again heard the matter and gave judgment substantially the same as that first rendered by him. On appeal, this judgment was reversed in the superior court, and the cause is now before us on defendant's appeal.

It was chiefly urged for error by the defendant, stating the position in his own language, "that the judge of the superior court had no jurisdiction or power to review the finding of the clerk on the question involved —that is, that no appeal lies from such finding—the purpose of the motion or pro ceedings being to set up or amend the record of the probate court of Rutherford county, of which the clerk is ex officio judge"; citing the case of Perry v. Adams, 83 N. C. 266, and some others of like purport. If it be conceded that this is a proceeding to amend or restore a lost record, defendant's position could not be sustained. Our Constitution and statutes do not now provide or recognize a probate court or probate judge as a tribunal or officer exercising a separate and independent jurisdiction. Under the law as it now exists with us, these matters of probate are chiefly referred to the clerks of the...