Bowers v. Bowers, 30 N.C. 247, 8 Ired. 247 (1848)

June 1848 · Supreme Court of North Carolina

30 N.C. 247, 8 Ired. 247

LEWELLEN BOWERS & AL. vs. SALLY A. BOWERS.

Where on a petition for dower int he County or Superior Court, the jury have made a report and that report is confirmed, the heirs cannot, at a subsequent term, file a petition to set aside this allotment of dower.

If there be errors in the allotment, the redress, if any, is not by. petition.

Appeal from the Superior Court of Law of Martin •County, at the Spring Term, 1S4S, his Honor Judge .Caldwell presiding.

The defendant, the widow of James L. Bowers filed her petition in the County Court of Martin at January term, 1847, for the purpose of having allotted to her her dower in the lands, of which her husband died seized and possessed. Such proceedings were had in the case, that, at the April term, 1847, the jury of freeholders, who had been previously summoned by the sheriff, in obedience to an order of the Court, made’ their report, assigning to the widow her dower in the lands set forth in the petition, and the report was at the same term confirmed and the sheriff duly put her in possession.

This petition was filed at October term, 1847, of the Court of Pleas and Quarter Sessions, and prays that for the errors set forth therein, the Court will “ set aside the report of the said sheriff and jury, and order are-allotment and assessment of the said lands.”

The Court below dismissed the petition, because the objections to the confirmation of the report of the jury, ought to have been made at the Court to which the said report was returned and confirmed, and upon the further ground, that, if there was a remedy to correct an improper allotment of dower, after the term of the Court, at which the report was made and confirmed, the proceeding in question was not the proper one. The plaintiff appealed.

Biggs, for the plaintiff

P. 11. Winston, Jim., for the defendant.

Nash, J.

The relief so sought cannot be granted. Although the original proceedings commenced by petition, yet they are on the common law side of the Court, and any error, which may have been committed by the Court, cannot be corrected by petition.

It is unnecessary to look into the various modes of assigning dower at common law. The proceedings in this State are under our own statute, Rev. Stat. c. 121, s. 2, which gives to our common law Courts, either County or Superior, jurisdiction of the subject. Its object was to secure to the widow a shorter and more simple mode of asserting her claim. Wherever the law has given to a party a right to go into a Court of law, to ascertain by petition a mere equitable right, there, as the proceedings are such as are in use in equity, they must be governed by the rules of chancery practi ce. If, therefore, in a petition for a distributive share, a witness be summoned by either party, he must be paid by the party summoning bim, because that is the rule aud practice in chancery. Ryder v. Jones, 3 Hawk. 24. So a decree made in such a case may be re-heard on petition. This however, is a case entirely at law, and is to be governed by the rules and practice of a Court of law.

It is said, however, that this petition, may be regarded as a writ of error, and that the Court will so regard it, to save delay and expense. There are two answers to this proposition, the first is, that it does not purport to be a writ of error, having hone of its features;. and in the second place, the errors complained of, if they exist, are errors of law, and a County Court cannot issue a writ to correct such errors in Its own judgment. By the 17th sec. of the 4th ch. Rev. Stat. power is given to the Superior Courts to grant writs of error, for correcting the errors of law of inferior Courts. We do not give any opinion, as to whether there were any errors in the allotment of dower, complained of, but agree with his Honor, who tried the cause, that, if there were errors, this is not the mode in which they can be reached.

Psr Cusiam, Judgment affirmed.