Rogers v. . Sluder , 148 N.C. 43 ( 1908 )

Defendants excepted and appealed. The plaintiff filed his petition alleging ownership (44) of a tract of land within a given boundary, fully and properly set out; and, defendants having answered, the cause was transferred to the civil issue docket of the Superior Court of Buncombe County, and at September Term, 1906, of said court a consent judgment was entered, by which it was declared that the plaintiff was the owner of the land and premises described in the complaint, and entitled to the quiet and peaceable possession of same; and the judgment proceeded further, as follows:

"And it having been further agreed between the parties hereto that the court appoint a competent surveyor to run and mark the corners and lines of said lands and premises, as above described, it is further ordered and adjudged that A. A. Hamlet be and he is hereby appointed an officer of this court, to survey and mark out the lines and corners of the above-described tract of land, including the lines between the plaintiff and defendants, and that the lines so marked out by said A. A. Hamlet and the corners so established by him shall become and remain the fixed lines and corners of the plaintiff's tract of land. Said A. A. Hamlet shall forthwith proceed to make said survey in accordance with this order, and file a report of same with the Clerk of this Court, to be recorded as a part of the minutes in this action."

Pursuant to this judgment the surveyor appointed notified the parties and, in the presence of plaintiff, defendants and others, surveyed and located the lines of the boundary set out and described in the petition and judgment, and on 12 January, 1907, made full report of his action to the court, including a map of the lands as located by him. Defendants filed several exceptions to the report, alleging various errors therein, and at October Term, 1907, before Guion, J., moved the court as follows:

"1. To set aside the judgment heretofore rendered in said cause, at September-October Term, 1906, of the Superior Court of Buncombe County, because the court had no jurisdiction to render said (45) judgment and because said judgment was irregular and contrary to the course and practice of the court.

"2. To remand said cause to the Clerk of the Superior Court of Buncombe County with directions to proceed therein according to law.

"3. To set aside the report of A. A. Hamlet, surveyor, heretofore filed in this cause, because the survey referred to in said report was incorrectly made and contrary to the directions given in the alleged judgment heretofore rendered in this cause, as pointed out in defendants' exception herein filed to said report."

Defendants further demanded a jury trial on an issue as to whether the surveyor had located the lines correctly and in accordance with the judgment of September Term, 1906; and moved, further, that the report of the surveyor be set aside and the matter be referred to some other competent surveyor, to be selected by the court. His Honor overruled all of these objections made by defendants to the validity of the report, and entered judgment in substance declaring the lines as located by the surveyor and contained in his report to be the true boundary of the land. There was no error in overruling defendants' objections to the proceedings, and the judgment by which same were confirmed and established must be affirmed.

The cause having been transferred to the Superior Court on issues raised by the pleadings, under our statute (Revisal, sec. 614), the Judge in term time had full jurisdiction to hear and determine all matters in controversy and to enter the judgment which was rendered. There are no facts presented tending to establish such a departure from the judgment directing a survey as to authorize or permit the court to set such survey and report aside because same did not comply with the judgment as rendered. So far as appears, the surveyor acted throughout in compliance with the order, and has located the lands described in the petition according to his best judgment; and (46) this judgment directing the survey having been entered by consent, the court had no power to "set aside or modify the same, except for fraud or the mistake of both parties." Vaughn v. Gooch,92 N.C. 524; Bunn v. Braswell, 139 N.C. 135.

There was no error, and the judgment entered in the court below is

Affirmed.