McDevitt v. McDevitt, 150 N.C. 644 (1909)

May 19, 1909 · Supreme Court of North Carolina

150 N.C. 644

ALFRED McDEVITT v. GEORGE McDEVITT.

(Filed 19 May, 1909.)

Partition — Report of Commissioners — Exceptions, When Taken — Amended Exceptions — Waiver of Time — Appeal and Error — Cause Remanded — Procedure.

One of the parties to a partition proceeding appealed within the twenty days fixed by the statute, and had the clerk enter upon record his objection and exception to the report of the commissioners. After twenty days had expired, said party and his attor-; ney appealed and filed amended exceptions, which were received and filed by the clerk. Some months later the motion to’ confirm was heard by the clerk, who declined to consider the exceptions: Held to be error, as exception was duly entered within twenty days, and the clerk had power to allow amended exceptions after the expiration of twenty days, and the action of the clerk was in effect allowing such amendments. Cause, remanded.

Appeal from tbe judgment of Ferguson, J., rendered at January Term, 1909, of MadisoN, affirming tbe order of tbe Clerk of tbe Superior Court of Madison County confirming tbe report of commissioners in partition proceedings.

Defendant appealed.

Gudger & McElroy for plaintiff.

W. W. Zachary for defendant.

Brown, J.

Tbis was a special proceeding, begun before the Clerk of the Superior Court of Madison County, for the purpose of partitioning land between tenants in common. There was a decree entered up, by consent, appointing commissioners to divide the land. Tbe commissioners proceeded, on. 16 May, 1908, to divide the lands, and filed their report on 20 May, 1908. During' the month of May, 1908, and before the twenty days for filing exceptions bad expired, the defendant went to the clerk and notified him that be desired to file exceptions to the said report, whereupon the clerk, in the presence of the defendant, made the following memorandum: “George McDevitt, the defendant, comes into court and objects to the report of the commissioners in tbis cause and asks that the same be not confirmed. Tbis the .. day of May, 1908. J. H. White, C. S. O.” On 13 July, 1908, the defendant, through bis counsel, filed amended exceptions, setting out various grounds why the report should not be confirmed. Tbe amended exceptions were received by the clerk, without objection, and the matter remained in statu quo until 15 October, 1908, when the clerk confirmed the report, upon the ground that no exception bad been filed within twenty days from the filing of the report. Tbe clerk’s judgment, upon appeal, was affirmed by the Judge of the Superior Court.

Tbis Court has held, in Floyd v. Rock, 128 N. C., p. 10, that exceptions must be filed within tbe twenty days after tbe report-is filed. But we do not construe either tbe decision or tbe statute as 'forbidding amendments to tbe exceptions after tbe expiration of that time; nor are we prepared to bold that tbe clerk, upon good cause shown, may not extend tbe time for- filing, exceptions. 1

In this ease, however, the defendant did except and object to the report within the twenty days, and later on filed amended exceptions, witho.ut objection. They were received by the clerk and filed by him, thereby signifying his official consent to such amendments. They remained on file for several months, and when the cause was heard, on 15 October, the clerk erred in not considering them on their merits.

The cause is remanded to the clerk, with directions to give .notice to plaintiff and defendant, fixing a day, and hear the report and exceptions thereto.

Reversed.