The appellees here assert that the case was improperly transferred to the civil issue docket and by reason thereof the judgment should be sustained for want of jurisdiction. This position is untenable.
The clerk is but a part of the Superior Court. Williams v. Dunn, 158 N.C. 399, 74 S.E. 99; Bynum v. Bank, 219 N.C. 109, 12 S.E. 2d 898. "Whenever a special proceeding begun before him is, for any ground whatever, sent to the Superior Court before the judge, the judge has jurisdiction. G.S. 1-276; McDaniel v. Leggett, 224 N.C. 806, 32 S.E. 2d 602, and cases cited. This rule applies to a processioning proceeding. Hill v. Young, 217 N.C. 114, 6 S.E. 2d 830.
While it may be the court below could have remanded the cause, his failure to do so may not be held for error. G.S. 1-276; York v. McCall, 160 N.C. 276, 76 S.E. 84.
While the court surveyor ran many lines, apparently for the purpose of locating the disputed boundary, neither his testimony nor the court map definitely points out this line. The record is so lacking in clarity *597it is difficult, if not impossible, to determine witb assurance just wbicb line is at issue.
Tbe jurors found' themselves in the same quandary. During the progress of the trial, one juror stated: “This jury would like to definitely know so that we can follow the witness: what is the dispute; we want to know if they will point out on this map just what is in dispute.” Counsel then, at the suggestion of the court, agreed that a small diamond shaped tract, lines 3-4~5-6-3 on the map, is in dispute. Although the testimony seems to indicate that the mill tract or the boundary lines thereof is also in dispute, counsel for defendants stated they owned it. As counsel for plaintiffs did not challenge this statement, we assume it to he true.
This small tract joins plaintiffs’ main boundary at point 3 on the map. They offered evidence tending to show record title thereto which would fix the dividing line as 3-4-5 on the map.
The defendants assert ownership by adverse possession of substantially all the small tract. But this is an affirmative defense and the burden of establishing it rests on them. Hill v. Young, supra; Cornelison v. Hammond, 225 N.C. 535, 35 S.E. 2d 633.
Thus it appears the parties are adjoining landowners and that there is a bona fide dispute as to the true location of the boundary line, which dispute puts the title to a small part of the land in issue. Judgment of nonsuit was not in order. Cornelison v. Hammond, supra.
We are unable to perceive why it was deemed necessary to bring in other parties. If it was necessary so to do, the court should have ordered a continuance so as to provide a reasonable time for them to be brought in and to plead. Absence of necessary parties did not warrant a nonsuit. G.S. 1-73; Joyner v. Fiber Co., 178 N.C. 634, 101 S.E. 373; Jones v. Griggs, 219 N.C. 700, 14 S.E. 2d 836; Moore v. Massengill, 227 N.C. 244, 41 S.E. 2d 655; Griffin & Vose, Inc. v. Minerals Corp., 225 N.C. 434, 35 S.E. 2d 247.
Whether other parties are necessary for a complete determination of the controversy is still open for the court below to decide. Such action is not precluded by this opinion.
If the location of lines other than those indicated is at issue, counsel may attribute the oversight on our part to the state of the record. In any event, neither party could be prejudiced thereby for there must be a new trial at which any issue properly arising on the pleadings and testimony may he submitted to the jury.
Reversed.