96 S.E. 107 | N.C. | 1918
HOKE, J., concurs in result. Motion before Clerk of the Superior Court of New Hanover County, under Revisal, sec. 620, for leave to issue execution on a judgment entitled as above and rendered at January Term, 1891, of said court. Before this judgment was taken, the defendant W. D. Wooten (598) and his wife had conveyed his real and personal property to Joel Hines by a general assignment for the benefit of his creditors, dated 26 October, 1889, and duly registered on the same day in Columbus County, where the grantors resided and the property was situated.
In the said deed of assignment, W. D. Wooten excepted his right of homestead, stating in the deed that "said homestead is not hereby conveyed or intended to be conveyed"; and again in another part of the deed, "which said homestead and personal property exceptions are to be laid off and assigned to him, the said W. D. Wooten, from the above mentioned real and personal property, as by the laws of North Carolina he is entitled to," they having been excepted from the operation of the deed.
In declaring the trust for the benefit of his creditors, he directs the trustee to take possession of the property and effects assigned to him and to sell the same, "after the above exemptions shall have been allotted according to law," etc. There was no allotment of a homestead by the trustee, but in February, 1891, the judgment of plaintiffs was docketed in the Superior Court of Columbus County and execution issued, thereon, under which, on 21 July, 1891, the homestead of W. D. Wooten was allotted in the lands described in the deed of trust to Joel Hines, and the allotment was duly filed in the office of the clerk of the Superior Court and also duly registered at the same time. There was no levy made under the execution as there was no excess.
Joel Hines, the trustee, died and J. B. Schulken was appointed trustee in his place, and all of the preferred debts secured by the deed of *636 trust having been paid, except the one due to the plaintiff of $684.37, and which on 27 February, 1914, amounted to $1,659.33, the trustee J. B. Schulken, conveyed the land described in the deed of trust to J. G. McCormick in consideration of the cancellation of said indebtedness. It also appears that on 17 February, 1914, W. D. Wooten and wife conveyed the homestead to the said J. G. McCormick, the two deeds of J. B. Schulken and W. D. Wooten and wife conveying all interests in the land conveyed by the deed of trust.
It appears further that a part of the lands was held by W. D. Wooten and W. H. Wooten as tenants in common, and that on 14 March, 1896, they executed to each other deeds for a certain part of the same, to be held in severalty, thereby severing the tenancy in common, and took possession of their several parts thereof.
This motion for leave to issue execution upon the judgment was made on 30 March, 1916, and the defendant, among other things, set up the statute of limitations, relying on the lapse of three and ten years since the issuing of the last execution on 1 May, 1891. The matter was heard by the clerk upon the motion and plea, and on (599) 3 December, 1916, the clerk decided and adjudged that the statute was a bar to any relief under the motion, and thereupon denied the motion and further adjudged that defendant go without day and recover his costs of the plaintiff.
The judgment of the clerk contained a statement of the facts upon which it was based, and was shown to counsel at the time it was prepared and copies thereof given to the parties. No exceptions were filed thereto at that time, nor for more than ten days after the judgment was signed or filed, and nothing was done by either party except the giving of notice of appeal by plaintiffs and acceptance of same or waiver of notice by defendant until on or about 10 February, 1917, when the clerk sent the papers to the judge.
When the matter came up before the judge at that time the defendant entered a special appearance and moved to dismiss the appeal because the same had not been perfected in accordance with Revisal, secs. 610, 611, 612, and 613. The case was continued by the judge, with consent of the parties, until 4 August, 1917, and again until 8 August, 1917, with leave to file affidavits. The plaintiffs filed no affidavits, and the judge found that the affidavits of defendant stated the facts correctly, the same being embodied substantially in this statement so far as material. He thereupon adjudged that plaintiff's appeal had not been perfected and prosecuted according to the statute, and dismissed the same with costs, but he also adjudged that if this was not true, the case was against the plaintiff on its legal merits and, upon the facts, he *637 affirmed the judgment of the clerk and final judgment was entered accordingly.
Plaintiffs then appealed to this Court. after stating the case: The judge decided correctly on both grounds. It appears that within three days after the appeal was taken from his judgment the clerk prepared a statement of the case, signed the same and exhibited it to the parties, and there was no objections filed by them. Nothing else was done by the clerk or the appellants until more than two months thereafter, that is, on 10 February, 1917, when, at the request of appellants, the papers were sent to the judge. The defendant moved to dismiss the appeal, and this motion was granted. An examination of the statute will show that if the papers had been sent to the judge at the time fixed by the statute (Revisal secs. 610 to 613), they should have been returned to the clerk with the order of the judge within twenty days afterwards, or certainly by 24 December, 1916, and as they were not filed by that time, plaintiffs should have known that there was an annual delay, and (600) have ascertained the cause of it. Instead of doing this, they did nothing after they had appealed until 7 February, 1917.
The law requires litigants to be diligent in the protection and prosecution of their rights in the courts. If the judgment was not returned by the judge at the expiration of the time fixed by the statute, the appellant should have taken steps then, if not earlier, to have learned the cause and asked for the proper remedy. He will not, and should not, be permitted to lie by and let the case take care of itself. He paid absolutely no attention to the requirements of the statute, and surely did not give the case that attention which a man should give to his important business. Many appeals have been dismissed when there was greater care and diligence. It is the clerk's duty to act primarily and send up the case, but if he fails to act it then becomes the duty of appellant to be active and to take such legal measures as the law allows to put the case before the judge, by motion for a rule on the clerk to send the case up, or byrecordari or certiorari, as may be appropriate. In other words, if the clerk does not perform his duty, the appellant must be careful to see that he does, otherwise there will be interminable delays to the prejudice of a proper, orderly and speedy administration of justice.
In Sigmon v. R. R.,
Our conclusion is that appellant was guilty of inexcusable laches, and that his appeal was properly dismissed.
But we are further of the opinion that if the appeal were not dismissed, the judge was right in his ruling as to the merits. The deed of trust was executed before the plaintiff's judgment was taken and docketed, and there is no attack made upon the deed for fraud or other cause. It therefore passed to the trustee all of defendant's property except that specially excepted, and the part thus excepted was only the defendant's homestead and no other interest in the land, all of which, with the exception noted, passed to the trustee for the benefit of W. D. Wooten's creditors. The homestead is only a right of exemption of the property which is set apart to the debtor from the claims of creditors. Joyner v. Sugg,
The question presented in this case was substantially decided in Kirkmanv. Peden,
And in McDonald v. Dickson,
Reference is made by defendant's counsel to Kelly v. McLeod,
We can find no reason for disturbing the judgment.
No error.
Cited: Byrd v. Nivens,