1 S.E. 553 | N.C. | 1887
The appellant brought this proceeding on the 30th day of October, 1884, to have the tract of land described in the record processioned, as allowed by the statute, (The Code, §§ 1926, 1927, 1928).
The processioner and freeholders made report of their action, to which the appellee filed numerous exceptions.
These exceptions were overruled by the clerk of the Court, and he confirmed the report. On appeal, the Judge reversed the order of the clerk, sustained the exceptions, and set the report aside. Thereupon, the petitioner appealed to this Court. *230 It would seem that the present proceeding was unnecessary, if not improper, as it appears from the eighth exception of the appellee, that at and before it began, the present appellant had begun an action against the appellee to try the title to the land in question. In that exception, it is alleged, "that the lands described in the petition in this case, are the same lands described in the complaint in the case of Thos. D. Holley against Geo. Gaskins and Sallie D. Holley, brought by the said Thos. D. Holley at the Fall Term, 1883, of Bertie Superior Court, and tried upon issues joined between the parties, at January Special Term, 1884, of said Court, and carried by appeal by the said Thos. D. Holley to the Supreme Court of North Carolina, from a verdict and judgment against him, in which Court it is now pending. The defendant Sallie D. Holley submits, that the plaintiff has no right in law to have the said land processioned while her suit upon said land to try the title and possession thereof is pending, and that the processioner and commissioners had no right to procession the same, pending the said cause, and their report in that behalf is inoperative and void."
It is suggested to us by affidavit, that the judgment in the action mentioned in the above recited exception has been affirmed in this Court, and that it embraces and settles the matter in controversy in the proceeding. See Holley v. Holley,
It seems, that the appellee intended, by the exception above referred to, to plead informally the pendency of the action mentioned therein, and it may be that the judgment appealed from in this case, was founded upon the pendency of that action, but that it was, does not satisfactorily appear. This exception is so informal and the facts so imperfectly found that we cannot so determine.
As we cannot, we deem it proper, with a view to justice and consistency in procedure, to remand the case, to the end that the Court below may allow the appellee, upon such terms as may be just, to amend her pleadings, if she shall be so advised, by pleading the judgment in the action mentioned and referred to in the eighth exception recited above. This course cannot unduly prejudice the appellant, because, if the matter here in controversy has been settled in the former action as suggested, then he ought to be concluded; if not, then he can have the benefit of this proceeding accordingly as his rights appear to be.
The statute (The Code, § 965,) contemplates that cases may be thus remanded with a view to justice. It provides that * * * * "the Court may remand the case to the intent that amendments may be made; further testimony taken; and other proceedings had in the Court below." And the case being remanded, the Superior Court has authority to allow all proper amendments. The statute (The Code, § 277,) expressly confers ample power on it for such purpose.
Let this case be remanded, and a copy of this opinion be certified to the Superior Court, to the end that further action may be taken there according to law. It is so ordered.
Remanded. *232