Langley v. Langley , 236 N.C. 184 ( 1952 )

72 S.E.2d 235 (1952) 236 N.C. 184

LANGLEY et ux.
v.
LANGLEY et ux.

No. 104.

Supreme Court of North Carolina.

September 17, 1952.

S. L. Arrington, Rocky Mount, for plaintiff appellee.

John M. King, Rocky Mount, for defendant appellant.

BARNHILL, Justice.

While, in a partition proceeding, upon exceptions filed to the report of the commissioners, the clerk may (1) recommit the report for correction or further consideration, or (2) vacate the report and direct a reappraisal by the same commissioners, or (3) vacate the report, discharge the commissioners, and appoint new commissioners to view the premises and make partition thereof, he is without authority to alter the report filed either by changing the division lines or by enlarging or decreasing the owelty charge assessed by the commissioners.

When the cause came before the judge on appeal, he was not limited to a review of the action of the clerk. He was vested with jurisdiction to review the report in the light of the exceptions filed, hear evidence as to the alleged inequality of division, and render such judgment, within the limits provided by law, as he deemed proper under all the circumstances made to appear to him. Tayloe v. Carrow, 156 N.C. 6, 72 S.E. 76; Skinner v. Carter, 108 N.C. 106, 12 S.E. 908; Hyman v. Edwards, 217 N.C. 342, 7 S.E.2d 700; McDaniel v. Leggett, 224 N.C. 806, 32 S.E.2d 602.

When a civil action or special proceeding instituted before the clerk is "for any ground whatever sent to the superior court before the judge", he has the authority to consider and determine the matter as if originally before him. G.S. § 1-276; Plemmons v. Cutshall, 230 N.C. 595, 55 S.E.2d 74; Woody v. Barnett, 235 N.C. 73, 68 S.E.2d 810.

On appeal this Court is limited to a review of alleged error of law in the judgment entered. Hyman v. Edwards, supra.

Whether the judge below reduced the owelty charge assessed by the clerk against the share allotted to the plaintiff for the reason the clerk was without authority to increase the same or because he concluded from the evidence offered that the partition made by the commissioners was fair and just is immaterial. In either event he was acting within the authority vested in him.

As no error in law is made to appear, the judgment confirming the report filed by the commissioners must be

Affirmed.