Rowland v. Thompson

• Decision Date: 30 June 1870
• Citation: 64 N.C. 714
• Court: North Carolina Supreme Court
• Parties: ALFRED ROWLAND and wife v. JOSEPH THOMPSON, Guardian, .

64 N.C. 714

ALFRED ROWLAND and wife

v.JOSEPH THOMPSON, Guardian, .

Supreme Court of North Carolina.

June Term, 1870.

Where an appellant elects (under C. C. P., s. 490,) to carry a case from the Probate Court, to the judge in vacation, it is still within the discretion of the latter to hear it in term time; and vice versa.

In case of such an appeal, if there be a further appeal from the judge to the Supreme Court, the latter tribunal can review no point before the Probate Court that was not passed upon by the judge,

( Practice, in the Probate Courts, in taking the accounts of executors, guardians, &c., stated in detail, the distinction between issues of fact and questions of fact, applied.)

( Heilig v. Stokes, 63 N. C., 612, approved.)

CIVIL ACTION, before Russell, J., at Spring Term 1870 of ROBESON Court.

The plaintiffs demanded a settlement by the defendant of his trust as former guardian of Mrs. Rowland. The defendant answered, submitting to an account. During the taking of the account the defendant excepted to various points of evidence, &c. The Probate Judge gave judgment for the plaintiffs, for a large amount. And the defendants appealed to the Judge of the District.

Upon the case being brought before his Honor at Chambers in Wilmington, he ordered it to be transferred, for trial as to matters both of law and fact, to the next term of the Court to be held for Robeson County.

The plaintiffs thereupon appealed.

Leitch, for the appellants .

N. A. McLean and W. McKay, contra .

RODMAN, J.

The simple question brought up for review in this case, is the right of the Judge to make the order appealed from, transferring the hearing of the appeal, from the Probate Judge to him at Chambers, to the Superior Court at its next term. If this Court should be of opinion that the Judge had no right to make the order in question, the only judgment which it could give, would be to remand the case to the Judge, in order that he might decide upon the questions presented by the appeal from the Probate Judge. No appeal lies directly from the Probate Judge to this Court: before any question can come before it, it must have been decided by the Judge of the Superior Court. Hence this Court cannot now inquire into the propriety of the findings of the Probate Judge; nor could it give judgment for the plaintiff according to his finding, even though all the Justices were individually satisfied that it was correct. Of course, we intimate no opinion of any sort on that point. In order to arrive at the question properly before us, it is proper to consider what is or ought to be the practice of the Probate Courts in taking the accounts of executors, guardians, &c.

An action in a Probate Court to enforce an account in invitum, is begun and prosecuted in analogy with a special proceeding in a Superior Court. The defendant is brought in by a summons, the plaintiff files his complaint, and the defendant his answer or demurrer, as is prescribed by the Civil Code of Procedure in civil actions. Section 490, C. C. P., enacts “All issues of fact joined before the Judge of Probate shall be transferred to the Superior Court of the County for trial.” An issue of fact is one made by the pleadings, and no other; it does not include every question of fact which may collaterally come before the Probate Judge in the course of taking an account: Heilig v. Stokes, 63 N. C. 612. For example, if in answer to a complaint against a guardian, the defendant shonld deny that he had ever been guardian, or should set up a release from his ward after his coming of full age; and the plaintiff should take issue on the denial, or should reply generally to the allegation of a release, issues of fact would be joined such as are intended in the act, and which, as they can only be tried by a jury, must be transferred to the Superior Court for trial. Probably that Court, having once obtained jurisdiction of the action, would retain it, after the decision of those issues, and would proceed to a complete decision of all the matters in controversy, by taking an account if necessary, or otherwise, according to its course. If, however, the defendant in the Probate Court, instead of putting in an answer offering an issue of fact, admits expressly, or by legal intendment, his liability to account, the Probate Judge proceeds to take and state the account in the ordinary way, hearing and recording all the evidence which may...