38 N.C. App. 37 | N.C. Ct. App. | 1978
Respondents made four assignments of error in this appeal.
1) They contend that it was improper to allow and order sale of the timber located on the subject property.
2) They contend it was error for the clerk to confirm the reports of the commissioners because specific values were not assigned to the severalty shares.
3) They contend it was error for the clerk to allow attorney fees to counsel for petitioner from the funds generated by sale of the timber.
Without reference to the merits of the respondents’ contentions, we are constrained to hold that the report of the commissioners was properly confirmed by the clerk, and will not now be disturbed. G.S. 46-19 provides that unless exceptions to the report of the commissioners in a partition proceeding are filed within ten (10) days of filing of such report, the report is confirmed and may be set aside only on grounds of fraud, collusion or mistake. Although respondents argue that sufficient mistake existed to form a basis for overturning the confirmed report of the commissioners, their argument is without merit. Mistake has been defined as “some unintentional act, or omission, or error, arising from ignorance, surprise, imposture or misplaced confidence.” 54 Am. Jur. 2d, Mistake, § 1 (1971), Black’s Law Dictionary 1152 (4th ed 1951). Although respondents have alleged in conclusory terms that the clerk’s confirmation of the commissioners’ report itself was a mistake, they did not, on hearing de novo before Judge McConnell, allege or prove those facts which would constitute mistake requiring that the report of the commissioners be vacated. Respondents were represented by counsel, their attorney serving additionally as a commissioner for the sale of the timber in question. Respondents do not show that they were deceived or misled into failing to file exceptions to the commissioners’ report, or that they were mistaken as to its contents. They were under no other impediment which would excuse their failure to timely file their exceptions, and therefore these exceptions must be deemed waived and the order confirming the commissioners’ report upheld. Floyd v. Rook, 128 N.C. 10, 38 S.E. 33 (1901); G.S. 46-19.
Affirmed.