Becker County Sand & Gravel Company v. Taylor

153 S.E.2d 19 (1967) 269 N.C. 617

BECKER COUNTY SAND & GRAVEL COMPANY
v.
A. R. TAYLOR, Administrator of Mary Jane (Mollie) Gilchrist Estate, Deceased, W. C. Gilchrist and wife, Clara Gilchrist, Elsie T. Wester and husband, Horace Wester, Clara T. Brown and husband, W. Hal Brown, Gertrude T. Myers and husband, Fred Myers, and Wayne Brown and wife, Dorothy Brown.

No. 605.

Supreme Court of North Carolina.

March 8, 1967.

Edgar R. Bain, Lillington, for plaintiff appellant.

Robert B. Morgan and Robert H. Jones, Lillington, for defendant, appellee.

BRANCH, Justice.

G.S. § 1-276 provides in pertinent part: "Whenever a civil action or special proceeding begun before the clerk of a superior court is for any ground whatever sent to the superior court before the judge, the judge has jurisdiction; and it is his duty, upon the request of either party, to proceed to hear and determine all matters in controversy in such action * * *." However, G.S. § 1-272 provides in pertinent part: "But an appeal can only be taken by a party aggrieved, who appeared and moved for, or opposed, the order or judgment appealed from, or who, being entitled to be heard thereon, had no opportunity of being heard, which fact may be shown by affidavit or other proof." (Emphasis ours) As these statutes deal with the same subject matter, they must be construed in pari materia, and harmonized to give effect to each. Strong, N. C. Index, Vol. 4, Statutes, § 5, at p. 182. In so doing, we note that the record does not disclose an appeal taken from the clerk of superior court to the superior court by a "party aggrieved" or "for any ground whatever."

Thus, the proceeding was not properly before the judge of superior court, since the record does not show an appeal from the clerk of superior court.

We have the anomalous situation of two orders of equal authority being entered by the office of the clerk of superior court of Harnett County. The order of confirmation dated 4 March 1966 purported to vest an equitable interest in the lands described in the petition in Elsie Taylor Wester, one of the tenants in common, of which she could be divested only on the ground of mistake, fraud or collusion. Strong, N. C. Index, Vol. 3, Judicial Sales, § 5, p. 71; Perry v. Jolly, 259 N.C. 305, 130 S.E.2d 654. Yet the record is void as to her participation in any manner in this appeal or as to her continued claim or interest in the property. As a general rule, the order entered on 22 April 1966 allowing plaintiff's motion of 16 February 1966 to dismiss the proceeding on condition that plaintiff pay to the administrator a sum sufficient to pay all of decedent's debts, including costs of court and commissions, would seem proper. Ordinarily, heirs or their successors in interest have the right to pay off the debts of the estate in order to prevent sale of real estate. Alexander v. Galloway, 239 N.C. 554, 80 S.E.2d 369. Further, if the tenancy in common is extinguished by the petitioner becoming the sole owner of the property, it would be a vain and useless thing to have the commissioner execute a deed to the person who already owns the entire interest in the property. However, there is no evidence of complete ownership in the plaintiff, except in his allegation and in the findings of fact by the clerk of superior court in a now-vacated order.

Further considering the proceedings in this cause, we find irregularities in that the office of the clerk entered an order on 4 March 1966 confirming the sale while there was a motion pending in the same office to dismiss the entire proceeding. Also, the order entered on 22 April 1966, which allowed plaintiff's motion to dismiss the proceeding, was entered without notice to adverse parties. "``(A)ll motions * * * other than those grantable as a matter of course * * * must be on notice.' * * * The court was powerless to take away the vested interest of (a purchaser at a judicial sale) without notice and opportunity to be heard." Perry v. Jolly, supra.

We are unable to determine with certainty the identity of the real appellant from the clerk to the superior court. However, both appellant and appellee contend in their respective briefs that this appeal arose solely from a dispute as to the amount of commissions to be paid the court-appointed commissioner.

"``A special commissioner in a chancery cause or a receiver of the court is simply an officer of the court, and as such he has no right to intermeddle in questions affecting the rights of the parties or the disposition of the property * * * in his hands. * * * (H)e cannot interfere in the litigation or ask for the revision of any order or decree affecting the rights * * * of the parties; but when his own accounts or his personal rights are affected, he has the same means of redress that any other party so affected would have.'" Summerlin v. Morrisey, 168 N.C. 409, 84 S.E. 689.

G.S. § 1-408 sets out the proper procedure for determination of fees to be allowed court-appointed commissioners. See also Welch v. Kearns, 259 N.C. 367, 130 S.E.2d 634.

Therefore, the order of Judge Bailey dated 16 May 1966, the order of the assistant clerk of superior court of Harnett County dated 4 March 1966, and the order of the clerk of Harnett County superior court dated 22 April 1966, are vacated. This cause is remanded to Harnett County Superior Court to the end that the court direct the clerk of superior court to hold plenary hearing upon notice to all parties of record (including the purchaser at the judicial sale) and at such hearing to take evidence and find facts as to the interest of all parties to this proceeding, and to enter judgment thereon according to law.

Error and remanded.