Floyd v. Rook. , 128 N.C. 10 ( 1901 )

An order for the partition of the lands described in the complaint, between the plaintiffs and the defendants, was made by the Clerk of the Superior Court of NORTHAMPTON County on 24 August, 1898, and on 29 November following, the report of the commissioners, who had been appointed to divide the lands, was filed in the Clerk's office. The plaintiffs, except E. J. Floyd, through their counsel, on 2 January, 1899, issued a notice to the defendants that they would move before the Clerk on 18 January, to set aside the judgment for partition in the cause.

On 2 February following, the plaintiffs filed exceptions to the report of the commissioners, and moved to continue the motion to set aside the judgment, and also the hearing of the exception. The defendants at the same time moved (11) for a confirmation of the report of the commissioners. The Clerk continued all the motions in the cause to 7 March. On the hearing, the plaintiff's motions were overruled, and they appealed to the Superior Court. His Honor refused to hear the exceptions to the commissioners' report on the ground that they had not been filed within 20 days after the filing of the commissioners' report, and because the Court had no power in law to hear the exceptions for the reason that they had been filed after 20 days from the date of the filing of the commissioners' report. His Honor confirmed the report of the commissioners, and ordered the same to be enrolled and certified according to law.

There was no error in the rulings of the Court. It is provided in section 1896 of The Code that the report of commissioners, who may be appointed to make partition of lands between tenants in common, shall be filed in the office of the Clerk of the Superior Court, and, that if no exceptions thereto be filed within 20 days, the same shall be confirmed. The proceedings can only be impeached for mistake, fraud or collusion. That language of The Code is peremptory, and can not be explained or altered by judicial decree. Great inconveniences had arisen in the past, before the enactment of that section of The Code, in reference to the giving of proper notices to the often numerous parties interested in the partition of lands, of the report of the commissioners. Revised Code, p. 452; Battle's Rev., p. 665. And to make those matters certain both as to the parties themselves and to subsequent purchasers for value, conclusive notice was to be presumed that all persons interested in partition proceedings had received notice of the particulars of the partition from the filing of the report of the commissioners, and that 20 days only after that time would be allowed in which to file exceptions to the report. The requirement of The Code in that (12) respect is not a rule of practice, nor is the report of the commissioners a pleading in the cause. The report is an act done by the representatives of the parties as well as of the Court, and of that act all parties interested must take notice. That requirement of The Code is a rule of law, and exceptions filed after 20 days have passed from the filing of the report of the commissioners are too late to be considered, and it makes no difference whether the report has been confirmed or not when the exceptions are filed, if they are filed after the time allowed by law.

We find no exception in so many words to the judgment of his Honor refusing to set aside the judgment and decree in partition of the Clerk, but, if such an appeal was intended, there is no error in that respect.

No error.

Cited: McDevitt v. McDevitt, 150 N.C. 645.