Bridgers v. Bridgers ( 1983 )

HEDRICK, Judge.

The petitioners argue the trial judge abused his discretion by holding that the property should be partitioned and by failing to follow this court’s opinion in Bridgers v. Bridgers, 56 N.C. App. 617, 289 S.E. 2d 921 (1982). In the first appeal, this court held that under N.C. Gen. Stat. Sec. 46-25 there could be an actual sale of the timber on both tracts, but that the trial judge had discretion as to whether to order a sale or an actual partition.

On retrial, Judge Tillery reached the same result as the previous trial judge but based his decision upon a correct interpretation of the statute and this court’s opinion in the first appeal. Judge Tillery declared:

That North Carolina G.S. 46-25 does not require the sale of the interest of respondent, Dewey W. Bridgers, in said timber but permits the Trial Court to exercise its discretion as to whether or not the sale of said timber should be ordered or denied, and it is the opinion of this Court in its discretion that the sale of said timber from the lands of Dewey W. Bridgers, et ux, should be denied. . . . and respondents should be granted the relief sought in their counterclaim. . . .

Judge Tillery’s judgment is consistent both with N.C. Gen. Stat. Sec. 46-25 and with this court’s opinion in Bridgers v. Bridgers, id. Therefore, we find that he did not abuse his discretion by denying the petition and granting the respondents’ counterclaim.

Affirmed.

Judges Wells and Phillips concur.