York v. York

156 S.E.2d 673 (1967) 271 N.C. 416

Arthur Lee YORK, Oliver Lee York and wife, Margaret York, Petitioners,
v.
Floyd C. YORK and wife, Betty York, Respondents,
v.
C. W. RANDOLPH and wife, Lockie Randolph, Additional Parties.

No. 120.

Supreme Court of North Carolina.

September 20, 1967.

Bruce J. Brown, Asheville, for respondent appellants, Floyd C. York and wife, Betty York.

Don C. Young, Asheville, for Arthur Lee York, Oliver Lee York and wife, Margaret York, petitioner appellees.

Cecil C. Jackson, Jr., Asheville, for C. W. Randolph and wife, Lockie Randolph, additional parties, appellees.

PER CURIAM.

The respondents attacked the validity of the sale of the lands for three reasons: first, that they received no notice of the pendency of the action or the sale of the lands; second, that the alleged certificate of Mrs. Turnbull was not in the files, and the orders of the clerk and the judge adding them and correcting the record was error; and, third, that notice of the proceedings was not mailed by the clerk as required by G.S. § 1-99.2, and specifically that he did not comply with subsection (c) which requires "The clerk shall mail a copy of the notice of service of process by publication * * *."

We are of the opinion that the respondents' positions are not well taken. Upon competent evidence, the clerk found as a fact that the notice and certificates had been signed but had been lost from the files. This was a matter to be determined by him. In Creed v. Marshall, 160 N.C. 394, 76 S.E. 270, the Court said that in matters of this kind the clerk "is the sole judge of the weight and credibility of the evidence, and his findings thereon are conclusive and are not reviewable by this court."

"The power of a court upon a proper showing to correct its records and supply an inadvertent omission cannot be doubted." Philbrick v. Young, 255 N.C. 737, 122 S.E.2d 725, and many cases there cited. See also State Trust Co. v. Toms, 244 N.C. 645, 94 S.E.2d 806; and State v. Cannon, 244 N.C. 399, 94 S.E.2d 339, in which case the Court, speaking through Denny, J., later C. J., approved the amendment to the minutes of the superior court some fifteen years after the omission occurred. This involved a serious criminal charge, and it could hardly be argued that if corrections can be made affecting the liberty of a defendant, that in matters of much smaller consequence they couldn't be corrected.

The other contention of the respondents that the clerk did not mail the papers cannot be seriously considered. The clerk of court in Mecklenburg County would be able to do little except carry letters to the post office if he were physically and personally required to mail them. It goes without saying that when he, or one in his office, authorizes the mailing of a notice, and there is proof by the person to whom the mailing is entrusted that it was mailed, that this constitutes compliance with the statute.

There are many rulings to the effect that the mailing of a letter properly addressed presumes a delivery to the addressee. Model Mill Co. v. Webb, 164 N.C. 87, 80 S.E. 232; First Nat. Bank of Graham, Va. v. Hall, 174 N.C. 477, 93 S.E. 981; Standard Trust Co. of New York v. Commercial Nat. Bank, 166 N.C. 112, 81 S.E. 1074; White v. Dixie Fire Insurance Co., 226 N.C. 119, 36 S.E.2d 923; Holloman v. Southern R. R., 172 N.C. 372, 90 S.E. 292, L.R.A.1917C, 416.

The judgment of the court below is

Affirmed.