ITCO Corp. v. West , 44 N.C. App. 185 ( 1979 )

MARTIN (Harry C.), Judge.

From the face of the record on this appeal, we are met with the threshold question of whether the superior court of Wilson County had jurisdiction to hear and determine defendant’s objections and exceptions to the homestead allotment.

The homestead allotment was made in Franklin County as defendant Ronald West’s property was located in that county. The sheriff’s return and the report of the appraisers were filed with the Clerk of Superior Court of Wilson County. Defendant Ronald West filed his objections and exceptions to the return in both Wilson and Franklin counties.

Although the homestead exemption is a constitutional right, Article X, North Carolina Constitution, it is left to the General Assembly to establish the procedures for the allotment of the property to be exempt. Formeyduval v. Rockwell, 117 N.C. 320, 23 S.E. 488 (1895).

The controlling portions of the statutes read:

Duty of appraisers; proceedings on return. — . . . They must then make and sign ... a return of their proceedings, . . . which shall be returned by the officer to the clerk of the court for the county in which the homestead is situated . . .. The officer must likewise make a transcript of the return over his hand and return it without delay to the clerk of the court of the county from whence the execution issued, . . ..

N.C. Gen. Stat. 1-372.

Exceptions to valuation and allotment; procedure. — If the . . . judgment debtor ... is dissatisfied with the valuation and allotment of the appraisers or assessors, he, within 10 days thereafter, . . . may notify the adverse party and the sheriff having the execution in hand, and file with the clerk of the superior court of the county where the allotment is made a transcript of the return of the appraisers . . .. Thereupon the said clerk shall put the same on the civil issue docket of the superior court for trial at the next session thereof as other civil actions.

N.C. Gen. Stat. 1-381, 1977 Supp. (emphasis added).

It thus appears that only the superior court of Franklin County had jurisdiction to hear and determine defendant’s objections and exceptions to the return on the homestead allotment. Exceptions to the allotment of a homestead must be filed in the office of the clerk of the superior court of the county where the allotment is made (here Franklin County), together with a transcript of the allotment. McAuley v. Morris, 101 N.C. 369, 7 S.E. 883 (1888). We hold the superior court of Wilson County was without jurisdiction to pass upon the exceptions to the allotment of homestead upon real property in Franklin County.

Therefore, the judgment of the superior court of Wilson County dated 25 October 1978 is null and void; the same is hereby vacated and the proceedings in Wilson County are dismissed.

We note that although the Sheriff of Franklin County did not file the return of the proceedings of the appraisers in Franklin County, as required by N.C.G.S. 1-372, defendant Ronald West filed his exceptions and objections to the allotment in both Franklin and Wilson counties.

The homestead right is a vested right and cannot be destroyed by any irregularity in the proceedings or want of procedure in the manner prescribed in The Code; therefore, when a failure in those methods occurs, it can, “in order to enforce the right,” be accomplished by other methods by the proper tribunal.

Formeyduval v. Rockwell, supra at 325, 23 S.E. at 488-89.

Vacated and dismissed.

Judges Hedrick and Clark concur.