Supreme Court of North CarolinaJan 1, 1880
82 N.C. 398 (N.C. 1880)

(January Term, 1880.)

Practice — Suit in Equity.

Where, under the old practice, proceedings in equity for partition by sale were transferred to the supreme court, the whole case was taken up, and all subsequent and necessary orders in the cause will be made in this court.

MOTION to reinstate a cause heard at January Term, 1880, of THE SUPREME COURT.

Messrs. G.S. Ferguson and Reade, Busbee Busbee, for plaintiffs.

Mr. J.H. Merrimon, for Johnston, the clerk, c.

The plaintiffs filed their bill in the court of equity of Macon county, asking a decree of sale of the lands in the bill mentioned for partition, claiming as devisees under the will of Ephraim Ammon, deceased, while the defendants claimed that the land did not pass under the will, but descended to them as tenants in common with the plaintiffs, as in case of an intestacy.

This court at June term, 1857, adjudged that by the said will the lands were devised to the plaintiffs and that defendants had no interest therein, and decreed the lands to be sold on one and two years' credit, and appointed J. Johnston, the clerk and master of the court of equity of Macon county, to make and report the sale as in the decree directed. The clerk and master made the sale on the 13th of July, 1859, amounting to nine hundred and forty-six dollars and reported the same to this court at __________ term, 1859, and the sale was confirmed and no further orders were ever made in this court in the cause.

But at fall term, 1878, of the superior court of Macon, an order was made in that court upon the idea that the cause was in that court, referring it to the clerk to enquire and report what sales had been made by Johnston the clerk and master, to whom and for how much, whether any of the purchase money had been paid, what sum, to whom, and when; and the clerk having reported upwards of four hundred dollars collected, and claimed to be invested in confederate certificates, and the balance amounting to more than one thousand dollars to be still due and unpaid by the purchasers, a rule was issued against said Johnston the late clerk and master, to spring term, 1879, to make report to court or show cause to the contrary.

On the return of the rule, it appearing that the cause was in the supreme court, His Honor dismissed the proceeding against Johnston the former clerk and master.

And now in this court, in pursuance of notice duly executed, it is moved to reinstate the case on the docket here, and on consideration thereof, it is ordered that the clerk of this court bring forward the case on the docket, and issue a rule to be served on Johnston, the late clerk and master of the court of equity for Macon county, to make report of his sales and collections if any, to return the bonds of the purchasers, and to show cause if any he have, why he shall not be compelled to pay so much of the money as he may have collected, returnable to the next term of this court.

PER CURIAM. Order accordingly.