Beavans v. . Goodrich

Davis, J., (after stating the facts). The first ground of appeal cannot be sustained. The defendant had filed exceptions to the first allotment, and had asked that seven acres additional should be allotted to him, and undertook to designate the particular part of the tract from which the seven acres should be taken, and this was assented to by the plaintiffs, but owing to the imperfect and erroneous description given by himself, it was impossible for the commissioners, with the aid of the surveyor, to make the allotment as requested, because he had no land adjoining the tract first allotted. As the defendant had no adjoining land from which the additional allotment, .as designated by him, could be made, though the land designated was near to that allotted, a further order was necessary, and that order gave to the defendant the right to designate and select the additional seven acres. *223 From this order the defendant appealed, but he failed to perfect his appeal, and as the case states, abandoned it, and if theré was anything in it, it cannot avail him now. All the subsequent proceedings were heard upon that order. It was not a mere fragmentary order or ruling to which exception could be taken, and reserved to be passed upon on final judgment. It went to the merits of the case. It is not like the case of Hines v. Hines, 84 N. C., 122, and the cases which follow it, in which this Court dismissed appeals from interlocutory orders and rulings, which did not affect the merits or final determination of the case. The facts as found, show that the defendant not only had requested the seven acres additional to be allotted, which was assented to by plaintiffs, but he had every opportunity of locating the allotment. The facts show that the commissioners sought his aid in the allotment, but he would not give them any information or assistance. The report leaves blank the date of the allotment, but it is found, as a fact, that it was on the 22d day of April, 1887. The defendant knew when it was done, and was urged to be present and give information and assistance in locating the seven acres. The omission to state the exact time in the report worked no injury to him, and the second exception cannot be sustained. The third exception is to the refusal of his Honor to grant a jury trial of the issues raised between the parties. The questions of fact which arise in the progress of the allotment by the commissioners, are not such issues of fact as entitle the parties to a trial by jury; they are governed by the principal laid down in Carr v. Askew, 94 N. C., 194, in regard to questions of fact, and if they were not, the defendant by his own action in this case had waived the right. But his counsel insists, that under the amendment contained in chapter 347 of the laws of 1885, the defendant had a right to have the value of the property assessed by the *224 jury and laid off by the commissioners, in accordance with their verdict. Having demanded “ an increase of the exemption or allotment,” undoubtedly the parties, both plaintiffs and defendants, or either, would have had the right to have the property valued by a jury, as provided in the amendatory statute of 1885; but in this case, the defendant himself, in addition to specifying the property from which “the increase or re-allotment” was to be made, designated the quantity or number of acres which he wished to have added to the allotment previously made, and to this the plaintiffs assented, so there was no issue to be decided or difference to be settled by any one except the commissioners, whose simple duty it was to have measured and laid off to him the seven acres selected by himself and assented to by the plaintiffs. What possible necessity could there be for a jury? The objection looked very like a frivolous trifling with the plaintiffs and with justice. If he failed to have the lines run just as he wanted them, it was manifestly his own fault, because the facts found show not only that he had every opportunity to make definite the land specified by him, but he was requested by the commissioners to do so. It is true that in one of the exceptions filed, the defendant says that “ the land allotted does not embrace seven acres,” but this exception is not presented in the case on appeal, and the lines given in the report, make a rectangular parallelogram, and a simple calculation will show that the area allotted embraces a fraction more than seven acres. There was nothing in the third exception of which the defendant could complain, and it is not sustained. The fourth exception presented in the case on appeal having been abandoned in this Court, the only remaining exception is to the judgment against the defendant for costs. The Code, § 510, provides that “ the costs and expenses of appraising and laying off the homestead * * * when the same is made under execution, shall be charged and in- *225 eluded in the officer’s bill of fees, upon such execution or other final process, and when made upon the petition of the owner, they shall be paid by such owner * * Section 521 provides, that if the Superior Court shall confirm the assessment or increase the exemption allowed, the creditor shall pay all the costs of the proceeding in Court. It may become necessary, under the judgment in this case, to sell the whole of the land, and this cannot be ascertained till after the sale of the unallotted land. The question of costs must await the sale and final judgment. Thus modified the judgment of the. Superior Court is affirmed, and the defendant Goodrich, will pay the costs incurred by the appeal to this Court. No error. Affirmed.