Jenkins v. Fox ( 1990 )

ORR, Judge.

The sole issue on appeal is whether the evidence supported the trial court’s findings of fact and conclusions of law. For the reasons set forth below, we reverse the trial court’s order.

Under N.C. Gen. Stat. § 46-19 (1984), “If no exception to the report of the commissioners is filed within 10 days, the same shall be confirmed.” The petitioners excepted to the report of the commissioners in a document filed on 1 August 1988, but stated no grounds for their exceptions. The statute does not require that exceptions be specific or contain specific grounds.

Respondents argue that exceptions must be specific in order to put the opposing parties and the trial court on notice of what issues will be argued before the court. Further, respondents argue that it would place an undue burden on the court to examine the entire record and determine the grounds for exceptions.

While we agree that the trial court and parties should have notice of the issues involved in any case, the only issue on appeal under § 46-19 is “whether the report of the commissioners should be confirmed ... by the clerk and, upon appeal from his order, by the judge.” Allen v. Allen, 258 N.C. 305, 307, 128 S.E.2d 385, 386 (1962) (emphasis in the original). In determining whether the report should be confirmed, the trial court may “review the report in the light of the exceptions filed, hear evidence as to the alleged inequity of division and render such judgment ... , as he deem[s] proper under all the circumstances . . . .” Langley v. Langley, 236 N.C. 184, 186, 72 S.E.2d 235, 236 (1952).

An action for partition under N.C. Gen. Stat. § 46-1 (1984) is a special proceeding. When such action is appealed from the clerk to the superior court “for any ground whatever . . . ,” the trial court has the authority to consider the matter de novo. Id. (citations omitted).

In the case before us, petitioners excepted to the commissioners’ report under § 46-19. The above principles of law make it clear that the only issue before the trial court was whether the report should be confirmed. In making this determination, the trial court has the authority, de novo, to review the report, hear evidence and render the appropriate judgment. The trial court does not have the authority under § 46-1, et seq. to dismiss the appeal because petitioners did not state specific grounds why the commissioners’ report should not be confirmed.

We note that originally petitioners excepted to the commissioners’ report because the “partition was not in accordance with the value of the property.” The commissioners reconsidered the partition and resubmitted it as before which was confirmed by the clerk. There is no question that petitioners’ basis for excepting was as originally noted.

We therefore hold that the trial court erred in dismissing the appeal and remand for further proceedings consistent with this opinion.

Vacated and remanded.

Judges Eagles and Parker concur.