Williamson v. Spivey

• Decision Date: 10 May 1944
• Docket Number: 593.
• Citation: 30 S.E.2d 46,224 N.C. 311
• Parties: WILLIAMSON v. SPIVEY.
• Court: North Carolina Supreme Court

30 S.E.2d 46

224 N.C. 311

WILLIAMSON v. SPIVEY.

No. 593.

Supreme Court of North Carolina

May 10, 1944

Special proceeding to establish dividing line between adjoining landowners.

It appears that summons was issued and petition duly filed November 15, 1934; that referees were appointed at the August Term 1936, a majority of whom filed their report October 1 1941; that the original papers have been lost; that order was entered at the July Term, 1942, permitting 'substitute pleadings', which have been filed, and that order was entered by Judge Leo Carr at the December Term, 1942 adjudging 'that the Report of the Referees heretofore appointed by the court to determine the matters at issue in this cause, complies with said orders and is the Report of said orders and is the Report of said Referees * * * and the plaintiff, through counsel, having no objection to said finding, the court in its discretion allows the plaintiff until Monday December 7, 1942, to file any exceptions to said report he may be advised are proper'.

Thereafter the plaintiff lodged motion to remand to the clerk with direction that he proceed as in special proceedings to establish the disputed boundary line. Overruled exception.

Exceptions were thereupon filed to the report of the referees, which were heard and overruled at the October Term, 1943.

From judgment confirming the report of the referees, the plaintiff appeals, signing errors.

Varser, McIntyre & Henry, of Lumberton appellant.

No counsel appearing for defendant.

STACY Chief Justice.

The motion of the plaintiff to remand to the clerk perhaps would have been allowed, but for the order entered at the December Term, 1942, finding the report of the referees to be in compliance with their appointment, 'to determine the matters at issue,' and this finding was made without objection on the part of the plaintiff. It is recited in the report that the cause was referred to the referees 'for the purpose of finding the true dividing lind between the lands of the plaintiff * * * and the lands of the defendant'. McIntosh on Procedure, 563. True, the plaintiff avers the reference was simply to locate the 'agreed line', but the report indicates a different understanding on the part of a majority of the referees, which was confirmed by Judge Carr without objection.

In addition, the defendant is entitled to call to his aid the principle of omnia rite acta praesumuntur and the prima facie presumption of rightful jurisdiction which arises from the fact...