Spencer, Ex Parte
- Reporters:
- Before:
- MeRrimon
(after stating the facts). The counsel for the appellees insisted on the argument, that no appeal lies from the order in question. We think otherwise. It puts an end tо the present proceeding, and to the appellants’ right to have the bеnefit of so much of the account, stated and confirmed by the Clerk, as they do not except to, and their right to have their exceptions to the report reviewed, and sustained or overruled. Whenever an order or judgment puts an end to thе action or proceeding, or an interlocutory order will deprive a рarty of a substantial right, if the alleged error shall not be corrected before the final judgment, an appeal lies therefrom to this Court. Leak v. Covington, decided at this term.
It seems that the learnеd Judge misapprehended the nature of this proceeding. It is not a Speciаl Proceeding, under the Code of Civil Procedure, nor did it begin in the Superior Court. It began before the Clerk, in the exercise of his jurisdictional functions, as prescribed аnd conferred by the statute (The Code, §103), which provides, among other things, that the Clerk shall have jurisdiction: “To audit the accounts of executors, administrators, collectors and guardians.” In such cases, the statute (The Code, §116,) further provides, that: “All issues оf fact joined before the Clerk, shall be transferred to the Superior Court for triаl at the next succeeding term of said Court; and appeals shall lie to the Judgе of the Superior Court having jurisdiction, either in Term time nr vacation, from the judgments of the Clerk of the Superior Court in all matters of law. In case of such transfer or appeal, neither party shall be required to give an undertaking for costs, and the Clerk shall transmit on such transfer or appeal, to the Superior Court, or to the Judge thеreof, the pleadings, or other pajoers, on which the issue of fact or law arises.” In such cases of appeal, the Clerk is not required to “ prepare a statement of the case, of his decision and of the appeal,” as he *275 is required to do by the statute (Thé Codе, §254). This latter provision applies to a different class of appeals, thаn those from the judgment of the Clerk when he is acting as and for the Superior Court. Lovinier v. Pierce, 70 N. C., 172; Brittain v. Mull, 91 N. C., 498.
The аccount is settled by the order of the Clerk confirming the report thereof, exсept so far as it may be affected by the exceptions thereto, and thе parties are entitled to have the benefit of what has been correctly done. The Judge should have proceeded to consider and sustain the exceptions, or should have overruled them, and make proper order in that rеspect. It was his province .and duty to determine the matters of fact and law invоlved in the exceptions. If the evidence before him in the papers was not sufficient and satisfactory, he might have required the production of other and furthеr appropriate evidence. He could himself have found the facts, bеcause in the nature of the matter, only ■questions of fact were presentеd. If he should deem it necessary to do so for his better information, he might have submitted issuеs of fact to a jury. Rowland v. Thompson, 64 N. C., 714.
Obviously, we cannot overrule the exceptions. They havе not yet been considered by the Judge of the Court below.
We advert to the ordеr directing the ex-Clerk to “file the said ■evidence and admissions in writing to the next term of this ■Cоurt,” to say that we cannot see the propriety of it. He had ■no official оr authoritative control over the papers, or any of them, in the proсeeding. These all passed, in contemplation of law, to his successor in оffice, and ought to have done so in fact, and to the Clerk in office such order should be directed. ’ If the ex-Clerk had the papers — -it seems from his “report” he did not— he ought to have been required to return them to the office of the Clerk, and thеnce they should pass to the Superior Court.
There is error; the order appealed from must be reversed, and the Judge will proceed according to law. To that end, let this ■opinion be certified to the Superior Court. It is so ordered.
Error. Reversed.