Johnson v. Taylor, 257 N.C. 740

257 N.C. 740 | N.C. | 1962

DeNNy, C.J.

A careful examination of the pleadings in this proceeding, leads us to the conclusion that title to land was not involved and the Clerk of the Superior Court of Onslow County had jurisdiction to enter the judgment signed by him on 9 June 1960. The respondents did not except to this judgment, neither did they give any notice of appeal therefrom to the Superior Court.

In the case of Plemmons v. Cutshall, 234 N.C. 506, 67 S.E. 2d 501, this Court said: “(A) perusal of the answers shows that respondents admit that petitioners own land adj oining the land they, the respondents, expressly aver they own, and of which they have had adverse possession for more than seven years under color of title, — yea, more than twenty years under known and visible lines and boundaries.

“Thus no issue of title is raised, — either as to the lands of petitioners, or as to the lands of respondents. So, after all the underbrush is cleared away, the pleadings raise only the issue as to ‘What is the true dividing line between the lands of petitioners and the lands of respondents?’ See Greer v. Hayes, 216 N.C. 396, 5 S.E. 2d 169; Cornelison v. Hammond, 225 N. C. 535, 35 S.E. 2d 633.”

Insofar as the record discloses, the additional respondents never filed answers or participated in any of the hearings in this cause. Moreover, there is no finding or other indication that the dividing line between the lands of petitioner and the original respondents, as determined by the Clerk of the Superior Court of Onslow County, affected the rights of the additional respondents in any way whatsoever.

Certiorari may not be used as a substitute for an appeal expressly provided for by law, unless the right of appeal has been lost through no fault of the petitioner. An appeal in a processioning proceeding from the judgment entered therein by a clerk of the superior court in determining the location of a boundary line, is expressly provided for in G.S. 38-3, subsection 2, which reads as follows: “Either party may within ten days after such determination by the clerk serve notice of appeal from the ruling of the clerk determining the said location. When notice of appeal is served it shall be the duty of the clerk to transmit the issues raised before him to the next term of the superior court of the county for trial by a jury, when the question shall be heard de novo." See McDowell v. Kure Beach, 251 N.C. 818, 112 S.E. 2d 390; Sanford v. Oil Co., 244 N.C. 388, 93 S.E. 2d 560; Russ v. Bd. of Education, 232 N.C. 128, 59 S.E. 2d 589; Bell v. Nivens, 225 N.C. 35, 33 S.E. 2d 66; Belk’s Dept. Store, Inc. v. Guilford County, 222 N.C. 441, 23 S.E. 2d 897.

In this proceeding, Judge Bone found as a fact that the respondents “have lost their right of appeal from the judgment of the Clerk, not by reason of excusable neglect, but by their own folly in attempting to handle their own case, in some instances without assistance of counsel, and, in other instances, contrary to advice of counsel.” There is ample evidence on this record to support this finding.

Consequently, we concur in the ruling of the court below that the respondents are not entitled to have this cause heard de novo in the superior court upon writ of certiorari as a substitute for an appeal from the judgment entered by the Clerk of the Superior Court of Onslow County on 9 June 1960.

The judgment of the court below is

Affirmed.