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236 N.C. 184

72 S.E.2d 235

Langley v. Langley

Supreme Court of North Carolina

Decided September 17, 1952

Supreme Court of North Carolina · decided 1952-09-17

Key passage — most relied on by later courts

““When the cause came before the judge on appeal, he was not limited to a review of the action of the clerk. He was vested with jurisdiction to review the report in the light of the exceptions filed, hear evidence as to the alleged inequality of division, and render such judgment, within the limits provided by law, as he deemed proper under all the circumstances made to appear to him.” (Our italics) The opinion then cites these prior decisions: Tayloe v. Carrow, supra; McDaniel v. Leggett, 224 N.C. 806 , 32 S.E. 2d 602 ; Hyman v. Edwards, supra; Skinner v. Carter, 108 N.C. 106 , 12 S.E. 908 .”

quoted by 2 later decisions, including 264 N.C. App. 164 - Donnell-Smith v. McLean, Allen v. Allen

“"Judge determines entire controversy; may recommit. — Whenever a civil action or special proceeding begun before a 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, unless it appears to him that justice would be more cheaply and speedily administered by sending the action back to be proceeded in before the clerk, in which case he may do so."”

quoted by 2 later decisions, including Hassell v. Wilson, Hassell v. Wilson

Relies on McDaniel v. . Leggett · Woody v. Barnett · Plemmons v. Cutshall

Good law ✅— No negative treatment on recordhow we know

Decided 1952-09-17

How this case has been cited

Cited by 19 later decisions — most recently March 2019

3 federal appellate · 14 state decisions

601952196019701980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

BabNhill, J.

¶1 While, in a partition proceeding, upon exceptions filed to the report of the commissioners, the clerk may (1) recommit the report for correction or further consideration, or (2) vacate the report and direct a reappraisal by the same commissioners, or (3) vacate the report, discharge the commissioners, and appoint new commissioners to view the premises and make partition thereof, he is without authority to alter the *186 report filed either by changing the division lines or by enlarging or decreasing the owelty charge assessed by the commissioners.

¶2 When the cause came before the judge on appeal, he was not limited to a review of the action of the clerk. He was vested with jurisdiction to review the report in the light of the exceptions filed, hear evidence as to the alleged inequality of division, and render such judgment, within the limits provided by law, as he deemed proper under all the circumstances made to appear to him. Taylor v. Carrow, 156 N.C. 6, 72 S.E. 76; Skinner v. Carter, 108 N.C. 106; Hyman v. Edwards, 217 N.C. 342, 7 S.E. 2d 700; McDaniel v. Leggett, 224 N.C. 806, 32 S.E. 2d 602.

¶3 When a civil action or special proceeding instituted before the clerk is “for any ground whatever sent to the superior court before the judge,” he has the authority to consider and determine the matter as if originally before him. G.S. 1-276; Plemmons v. Cutshall, 230 N.C. 595, 55 S.E. 2d 74; Woody v. Barnett, 235 N.C. 73.

¶4 On appeal this Court is limited to a review of alleged error of law in the judgment entered. Hyman v. Edwards, supra.

¶5 Whether the judge below reduced the owelty charge assessed by the clerk against the share allotted to the plaintiff for the reason the clerk was without authority to increase the same or because he concluded from the evidence offered that the partition made by the commissioners was fair and just is immaterial. In either event he was acting within the authority vested in him.

¶6 As no error in law is made to appear, the judgment confirming the report filed by the commissioners must be

¶7 Affirmed.

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