Skinner v. Carter

• Decision Date: 24 February 1891
• Citation: 12 S.E. 908,108 N.C. 106
• Court: North Carolina Supreme Court
• Parties: Skinner et al. v. Carter et al.

12 S.E. 908

108 N.C. 106

Skinner et al.

v.Carter et al.

Supreme Court of North Carolina.

Feb. 24, 1891.

Partition—Commissioners' Report—Appeal.

1. Where the report of commissioners appointed by the clerk of the superior court to make partition of land does not show that the shares allotted, though equal in extent, were equal In value, the court may remand the pro ceedings with directions to the clerk to appoint other commissioners, since the omission affects the substantial rights of the parties, within the exception of Code N. C. § 289, which provides that no report made by commissioners shall be set aside and sent back to them or others for a new report, by reason of any defect or omission "not affecting the substantial rights of the parties, " but such omission or defect may be amended.

2. An appeal will lie from an order of the court remanding the proceedings in such case, since, though the order is interlocutory, it might impair a substantial right of the complaining party.

Special proceeding for partition of land, heard before Whitaker, J., on appeal from the clerk at spring term, 1890, of Gates superior court. The defendants had no counsel before the clerk, and filed no answer to the complaint. As the record shows the commissioners were regularly appointed; and they met on the premises, and, after being duly sworn, divided the land and made their report. The plaintiffs excepted to the report, as shown by the record. The clerk overruled the exception, and confirmed the report, from which the plaintiffs appealed to the superior court at term. On the hearing of the appeal, the defendant Caroline Carter employed counsel, and moved to dismiss the appeal because the exception filed was to a finding of fact by the commissioners, which is not a subject of exception. The court overruled the motion, and the defendants excepted. The defendants then moved to remand the report to the commissioners, in order that any defect in the form thereof might be covered by amendment. This was also refused, and the defendants excepted. The defendants then asked to be allowed to show by affidavits that the commissioners did in fact estimate the land and divide it according to its value, and that the failure so to show in their report was a mere clerical error, which they ought to be allowed to have corrected. This was also refused, and the defendants excepted. Counsel for defendants then called the attention of the court to the fact that the report was drawn by plaintiffs' counsel, who would not state that the commissioners did not in fact estimate the land in their division. Plaintiffs' counsel then stated that, however honest the commissioners may have been in their estimate of the land, he was prepared to show by affidavits that the division was not equal as to value. The court stated that it did not desire to hear affidavits on either side, and ordered the cause to be remanded to the clerk, with instructions to appoint new commissioners to divide the land according to law. The defendant Caroline Carter excepted, and appealed.

L. L. Smith, for appellants.

S. L. Scull, for appellees.

Avery, J., (after stating the facts as above.) The procedure in special proceedings, instituted (under the provisions of Code, c. 47) for partition or for sale for partition, is the same as where the relief sought in such proceedings is of a differentcharacter. Code, § 1923. The rules of practice prescribed by ...