113 N.C. 390 | N.C. | 1893
When this cause was here before (109 N. C., 564), the Court said, in reference to “ vouchers numbered, respectively in the account stated by the referee, Nos. 2, 5, 6, 7, 10, 11, 12, 13, 14, 15, 16, 17,” aiid those for “sundry trips to Raleigh on account of ward,” that “ the referee must be required to inquire more particulárly as to the nature and purpose of and the necessity for the expenditures and disbursements embraced by them.” This the referee proceeded to do. On the coming in of the, report the Court allowed defendant’s exceptions to vouchers 11, 12, 13, 14, 15, 16 and 17, and ordered a re-reference to reform the account. As no appeal lay from such interlocutory order (Wallace v. Douglas, 105 N. C., 42), the plaintiff properly caused his exceptions to the rulings to be noted in the record. It is now brought up for review on the appeal from the final judgment. The referee found from the evidence that these vouchers (11 to
The plaintiff’s second exception was made at January Term, 1893, for that in reforming the account the referee had failed to make a deduction of $41.75, allowed by the Court in voucher number 10, from the sum total of the debits. It seems to us from inspection of the account that the deduction was made. But as the account must be reformed by reinstating vouchers 11 to 17 inclusive, the inadvertence, if such there be in regard to this $41.75, will be corrected.
The plaintiff further excepts in this Court, for the first time and ore tenus, on the ground of a want of jurisdiction, in that the action was instituted before the Clerk originally. This he can do — Rule 27 of this Court. But the objection is unfounded. Donnelly v. Wilcox, at this term. The Clerk has jurisdiction of settlements between guardian and ward, and of course of settlements between guardian and the ward’s personal representative. The Code, § 1619; McNeill v. Hodges, 105 N. C., 52. But had the action been “ begun wrongly before the Clerk, it having gotten into the Superior Court by appeal or otherwise, the latter has jurisdiction of the whole cause, and can make amendment of process to give effectual jurisdiction.” Capps v. Capps, 85 N. C., 408; Cheatham v. Cruise, 81 N. C., 343; Robeson v. Hodges, 105 N C., 49. The Court here in such case would amend the process if necessary. State ex rel., etc., v. Telegraph Co., at this term; The Code, § 965; or might remand the case that the amendment might be made in the Court below. Where, however, a cause has been so long pending as this, without exception on that ground, it would be presumed that the requisite-amendment of process had been in fact already ordered in the Superior Court.
The judgment thus modified as indicated, is affirmed. The costs of this Court will be taxed against the appellee. The Code, § 540. Modified and Affirmed.