Williams v. Bailey, 539.

Docket Nº539.
Citation97 S.E. 721, 177 N.C. 37
Case DateJanuary 03, 1919
CourtUnited States State Supreme Court of North Carolina

Clark C.J., and Hoke, J., dissenting.

Appeal from Superior Court, Buncombe County; Stacey, Judge.

Proceeding by Mamie V. Williams, executrix of Mrs. S. J. Dulin, against C. G. Bailey and others. From an order of the clerk of the superior court transferring the proceedings to the civil issue docket for trial, affirmed on appeal to the judge respondents appeal. Reversed.

Where petitioner, in a proceeding to compel by citation the production of a will for probate, offered no evidence and did not ask to examine, the respondent, it was the duty of the clerk of the superior court to discharge the rule at petitioner's cost.

The proceeding was commenced before the clerk of the superior court of Buncombe county. A petition was filed by petitioner to which the respondents answered, and petitioners filed a replication to the answer.

E. L Gaither, of Mocksville, and Bourne, Parker & Morrison, of Asheville, for appellants.

George W. Garland, of Salisbury, and Curtis & Varnon, of Asheville, for appellee.


Petitioner, as executor of Mrs. S. J. Dulin, filed a petition before the clerk, to which C. G. Bailey and others are made respondents, alleging that W. A. Bailey died in 1914 domiciled in Buncombe county leaving a last will devising his estate, consisting of real and personal property, to Mrs. S. J. Dulin and others; that respondents concealed said will and have conspired to prevent the distribution of the estate as in said will provided. Petitioners pray that a citation issue requiring respondents to appear before the clerk and produce the said will, to the end that the same may be thereafter offered for probate.

The respondents appeared and answered in writing and under oath. They denied that W. A. Bailey was domiciled in Buncombe county at his death, and denied specifically that they had any will of his in their possession. They averred that said Bailey left only one will that they ever knew or heard of, and that had been duly probated in common form and again in solemn form in Davie county, N. C., where said Bailey was domiciled at his death and letters testamentary issued thereon. They further aver that the original will is not in the possession or under the control of either of respondents, but is in the official custody of the clerk of the superior court of Davie county.

Upon the coming in of this answer and on the return day of the citation, December 4, 1917, no motion was made to examine respondents, and no evidence was introduced by petitioner for purpose of showing that respondents concealed any will or had it in their possession.

We are of opinion that this is a proceeding under Revisal, § 3124, to compel the production of a will which has never been offered for probate, and that no issues arise upon the petition and answer to be submitted to a jury.

On the return day of the citation to show cause, the respondents answered under oath fully and denied the possession or control of any will of W. A. Bailey. Their answer is as full and explicit as it is possible to make it.

The petitioner offered no evidence and did not ask to examine respondents. It was therefore the duty of the clerk to discharge the rule against respondents at cost of petitioner.

On the appeal the judge should have reversed the clerk and ordered that respondents be discharged.

It is true the motion was to dismiss the proceeding, when technically it should have been to discharge the respondents; but we treat it as the latter.

The record shows that, while the clerk decided to transfer the cause to the civil issue docket as upon issues of fact raised, the respondents appealed to the judge from such order, and it was from the judgment of the judge upon that appeal the respondents appealed to this court.

It is conceded that an appeal from a refusal to grant a motion to dismiss an action does not generally lie. It is the duty of the party to note his exception and proceed to trial before the judge and jury. But this is neither a civil action nor special proceeding. It is a proceeding under the statute to discover a secreted will in order that it may be probated, and no issues of fact were raised triable by a jury. When these respondents answered under oath denying possession or knowledge of any such will except the one in the clerk's office in Davie, they were entitled to their discharge, as petitioners offered no evidence whatever to contradict them and did not even ask to examine them.

It is so ordered.


CLARK C.J. (dissenting).

As stated in the case settled on appeal agreed to by both parties, this was a special proceeding begun before the clerk in Buncombe and transferred by him to the civil issue docket for trial. The appeal being heard before Stacey, J., the defendants moved to dismiss. His honor refused to dismiss, and directed that the cause be retained on the civil issue docket for trial. The defendants appealed.

If there is one proposition of law which has always been held by us, without a single exception, it is that "no appeal lies from a refusal to dismiss." In such case there is no judgment, but simply the refusal of a judgment, and the defendant should note his exception and appeal from the verdict and judgment upon the merits.

This has been held in Smith v. Mitchell, 63 N.C. 620; Garrett v. Trotter, 65 N.C. 435; Mastin v. Marlow, 65 N.C. 696; Mitchell v. Kilburn, 74 N.C. 483; Perry v. Whitaker, 77 N.C. 202; Foster v. Penry, 77 N.C. 160; Crawley v. Woodfin, 78 N.C. 4; McBryde v. Patterson, 78 N.C. 412; Capel v. Peebles, 80 N.C. 90; Long v. Bank, 81 N.C. 41; Gay v. Brookshire, 81 N.C. 409; R. R. v. Richardson, 81 N.C. 343; Wilson v. Lineberger, 81 N.C. 412; Spaugh v. Boner, 85 N.C. 208; Allen v. Royster, 107 N.C. 278, 12 S.E. 134; Plemmons v. Improvement Co., 108 N.C. 614, 13 S.E. 188; Guilford v. Georgia, 109 N.C. 310, 13 S.E. 861; Lambe v. Love, 109 N.C. 305, 13 S.E. 773; Sheldon v. Kivett, 110 N.C. 408, 14 S.E. 970; Cameron v. Bennett, 110 N.C. 277, 14 S.E. 779; Mullen v. Canal Co., 112 N.C. 109, 16 S.E. 901; Luttrell v. Martin, 111 N.C. 528, 16 S.E. 325; Lowe v. Accident Ass'n, 115 N.C. 18, 20 S.E. 169; Farris v. R. R., 115 N.C. 600, 20 S.E. 167; Sprague v. Bond, 111 N.C. 425, 16 S.E. 412; Joyner v. Roberts, 112 N.C. 111, 16 S.E. 917; Burrell v. Hughes, 116 N.C. 430, 21 S.E. 971; Whitaker v. Dunn, 122 N.C. 103, 29 S.E. 54; Kellogg v. Mfg. Co., 112 N.C. 191, 16 S.E. 902; Fertilizer Co. v. Marshburn, 122 N.C. 411, 29 S.E. 411; Cooper v. Wyman, 122 N.C. 784, 29 S.E. 947, 65 Am. St. Rep. 731; Jones v. R. R., 127 N.C. 188, 37 S.E. 215; Clinard v. White, 129 N.C. 250, 39 S.E. 838; Jester v. Steam Packet Co., 131 N.C. 54, 42 S.E. 447; Meekins v. R. R., 131 N.C. 1, 42 S.E. 333; Johnson v. Reformers, 135 N.C. 387, 47 S.E. 463; Kerr v. Hicks, 154 N.C. 269, 70 S.E. 468, 33 L. R. A. (N. S.) 529; Trustees v. Hinton, 156 N.C. 586, 71 S.E. 1087; Beck v. Bank, 157 N.C. 105, 72 S.E. 632; Chadwick v. R. R., 161 N.C. 210, 75 S.E. 852; Bradshaw v. Bank, 172 N.C. 633, 90 S.E. 789, and cases there cited.

Besides the above cases, there are numerous others which we have not cited, but all are to the same purport, that an appeal does not lie from a refusal to dismiss. There are also many cases in which this uniform ruling has been adopted by dismissing the appeal without repeating the reasons. These reasons are:

1. That it does not come within the instances in which an appeal is permitted by Revisal, § 587. See cases cited thereunder in 2 Pell's Revisal, on page 313.

2. Another reason is that no appeal lies, because if it did a defendant could always procure from to 6 to 12 months' delay in any case by moving to dismiss and appealing from such refusal. It is therefore an important matter to observe the statute and our uniform decisions.

Revisal, § 346, provides that all remedies under our present system are either actions or special proceedings. In this instance the case agreed on appeal states that this was a special proceeding, and when the case was transferred to the judge he was seized of full jurisdiction, Rev. 614, and could have remanded the cause to the clerk, or if there were issues raised, as he decided, submit them to a jury. Having so decided, the judge could not dismiss the action. In Goode v. Rogers, 126 N.C. 62, 35 S.E. 185, which is a case exactly in point, it being an appeal from the clerk, in special proceeding, the court below held that there were issues of fact for the jury and directed the cause to be placed on the civil issue docket for trial. The petitioners in this court contended that only "questions" of fact were raised and should have been decided by the court, and appealed from the order directing a jury trial. This court held that it could not consider the matter for the reason that the issues formulated by the judge have not been tried below, and dismissed the appeal as premature.

It is very clear that this appeal was premature and should be dismissed. The defendants should have excepted to the order, and on the trial of the issues, if the verdict shall be against them, then the appeal would bring up the exceptions to the submission of the issues.

In Beck v. Bank, 157 N.C. 105, 72 S.E. 632, Allen, J., approved the following from Hoke, J., in Pritchard v. Spring Co., 151 N.C. 249, 65 S.E. 968:

"If a departure from this procedure is allowed in one case, it could be insisted upon in another, and each claimant, conceiving himself aggrieved, could bring the cause here for consideration, and litigation of this character would be indefinitely prolonged, costs unduly enhanced, and the seemly and proper disposition of causes prevented."

The appeal in that case was...

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2 cases
  • State ex rel. Nelson v. Hammett
    • United States
    • Kansas Court of Appeals
    • June 2, 1947
    ... ... Christina B. Rieger. R. S. Mo., 1939, Sec. 569; 68 C. J., ... "Wills," Sec. 604b, p. 878, "Discovery and ... Compelling Production"; Williams v. Bailey, 177 ... N.C. 37, 97 S.E. 721. (3) The verdict and judgment are in ... error on the issues of incompetency of the grantor, Mrs ... ...
  • Johnson v. Pilot Life Ins. Co.
    • United States
    • North Carolina Supreme Court
    • March 1, 1939
    ...65 S.E. 968; Martin v. Flippin, 101 N.C. 452, 8 S.E. 345. See collection of authorities in opinion of Clark, C. J., in Williams v. Bailey, 177 N.C. 37, 97 S.E. 721. "It is only when the judgment or order appealed from the course of the action puts an end to it, or may put an end to it, or h......

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