Green v. . Harrison

59 N.C. 253 | N.C. | 1862

This is an application to this Court for a writ of (254)certiorari, founded upon the following statements of facts: The widow and children of Bryan Green, deceased, filed their petition in the Court of Equity for the county of Wake, in which they set forth that the said Bryan Green had died intestate, leaving a large real and personal estate, and that Carter B. Harrison had been duly appointed his administrator; that the estate was very much indebted, so much so that it would require not only all the perishable estate, but a considerable number of slaves, to pay the debts, and that it would be very much to the interest of the petitioners, who were the widow and next of kin of the deceased, to have a part of the real estate sold and substituted in the place of slaves in the payment of debts. Some of the petitioners were of full age and others minors, who sued by their guardian, and a decree was prayed to carry into effect the object of the petition. Carter B. Harrison, the administrator, was made defendants, and filed an answer, in which the facts stated in the petition were admitted, and he expressed the opinion that the best interests of the petitioners would be promoted by the course proposed. And an order of reference having been made to the Clerk and Master, he reported that it would be to the advantage of the petitioners to have the object of the petitioners carried out. A decree was thereupon made ordering a sale of certain portions of the real estate, and appointing the administrator a commissioner to make the sale, etc. Robert G. Lewis, the Clerk and Master of the Court, opposed so much of the decree as related to the appointment of the commissioner to make the sale, insisting upon his right, to be appointed, and upon his opposition being overruled, prayed an appeal to the Supreme Court, which was refused.

The only question now presented to us, and upon which it is proper for us to express an opinion, is whether the applicant for a writ ofcertiorari had a right to appeal from the order made in the Court of Equity for Wake County. The order, notwithstanding the form of it, was an interlocutory one, made in the progress of a suit of equity. (255) If the applicant had a right to appeal from that order, he must derive it from the provisions of the Revised Code, ch. 4, sec. 23, which are as follows: "The Superior Court may, whenever it shall be deemed proper, allow an appeal to the Supreme Court from any interlocutory judgments, sentence or decree, at law or in equity, at the instance of the party dissatisfied therewith, upon such terms as shall appear to the Court just and equitable," etc. The right of appeal, then, is given to a party to the suit. Who is a party to an action at law or a suit in equity? We understand that by such a party is meant one who is directly interested in the subject matter — who has a right to make defence — control the proceedings — adduce testimony — cross-examine the witnesses introduced on the other side, and to appeal from the judgment or decree; see 1 Green on Ev., secs. 523 and 535; 20 How. St. Tri., 538-n; 2 Bouvier's Law Dic., 284. All other persons are regarded as strangers to the action or suit. Tested by this definition, can the Clerk and Master, claiming a right to be appointed a commissioner to sell lands in the progress of a suit in equity, be deemed a party to the suit? Is he directly interested in the subject matter of the suit? Or has he a right to make defence, control proceedings, adduce testimony and cross-examine the witnesses of the opposite side? Certainly not. He can not then, in any proper sense, be deemed a party, and not being such, the statute does not give him any right of appeal.

Under the first section of the fourth chapter of the Revised Statutes of 1836, a right of appeal from the county to the Superior Court of Law was given to either the plaintiff or defendant, or to any person "who shall be interested." Under the latter clause of this section we held inMurphrey v. Wood, 47 N.C. 63, that a purchaser of land under an execution issued on a dormant judgment, had such an interest in the subject as entitled him to intervene and appeal from an order of the County Court setting such execution aside. And again, in Watkins v.Pemberton, 47 N.C. 174, we decided that the next of kin of an intestate was interested in an order of the County Court, obtained by an administrator to sell the slaves belonging to the estate for distribution, (256) instead of having them divided specifically, and that they might appeal from it. The clause under which these decisions were made, has been omitted in the Revised Code; see chapter 4, section 1; and we presume such appeals could not now be allowed. No such provision was ever made in the grant of the right of appeal from the Superior Court of Law or Court of Equity to the Supreme Court. (See 1 Rev. State., ch. 4, secs. 22 and 23; Rev. Code, ch. 4, secs. 22 and 23), and it follows that no person but a party can appeal from the sentence, judgment or decree of the former court to the latter. As the present applicant was not a person who could appeal from the interlocutory order made in the Court of Equity for Wake County, he can not be allowed the writ of certiorari to bring up the record of the suit, or any part of it, to this Court.

We abstain from expressing any opinion in relation to the decree made in the Court below, except merely to say that the present applicant can not bring it before us for review, either by appeal or by writ of certiorari. The applicant must pay the cost of his motion.

PER CURIAM. Decree accordingly.