(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 attorney 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 judgment of Ferguson, J., at January Term, (645) 1909, of MADISON, affirming the order of the Clerk of the Superior Court of Madison confirming the report of commissioners in partition proceedings.
Gudger McElroy for plaintiff.
W. W. Zachary for defendant.
This 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. The 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 had expired, the defendant went to the clerk and notified him that he 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 this cause and asks that the same be not confirmed. This the ___ day of May, 1908. J. H. White, C. S.C." On 13 July, 1908, the defendant, through his counsel, filed amended exceptions, setting out various grounds why the report should not be confirmed. The 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 had been filed within twenty days from the filing of the report. The clerk's judgment, upon appeal, was affirmed by the judge of the Superior Court.
This Court has held, in Floyd v. Rook, 128 N.C. p. 10, that exceptions must be filed within the twenty days after the report is filed. But we do not construe either the decision or the statute as forbidding amendments to the exceptions after the expiration of that time; nor are we prepared to hold the clerk upon good cause shown, may not extend the time for filing exceptions. (646) In this case, however, the defendant did except and object to the report within the twenty days, and later on filed amended exceptions, without 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.