In Re Hybart's Estate

Clark, J. In 1889 dower wás regularly allotted to Delia J. Hybart in an ex parte petition by her and her heirs-at-law. The report of tbe commissioners allotted her tbe farm of her husband for life in severalty, and to make up her third further charged upon the realty allotted to the heirs-at-law the payment of all taxes on the entire estate and the payment by the heirs to the widow of $5.00 per month out of the rents of the realty allotted to them. For awhile these payments were made, but, having fallen into arrearage of eleven months, this is a motion in the cause to subject the realty in hands of the heirs to the payment o>f the $55.00 overdue. The remedy sought could not be had before the Clerk. Nor could it be had by a motion in the cause, that cause having been terminated by a final judgment confirming the *131 allotment of dower. Causey v. Snow, 120 N. C., 279. This is an adversary proceeding, and if for a merely 'personal judgment against the heirs-at-law, should have been begun before a Justice of the Peace, and if it is sought to enforce the lien of $5.00 per month conferred by the judgment above recited, it should have been begun by summons returnable to term. “ It is true a motion in the cause may sometimes be treated as an independent action — Stradley v. King, 84 N. C., 635— but that motion in an adversary cause and in the proper Court. Here this is an adversary motion in an ex parle cause, and begun before the Clerk when it should have been brought to term before the Judge. If we could pass the first point, counsel insist that by virtue of Chapter 276, Laws 1887, amending The Code, sec. 255 (see Clark’s Code, 3d Ed., pp. 265, 267), the case having gotten into the Superior Court, the Judge is vested with jurisdiction. It is true, to prevent the anomaly of a cause brought before the Clerk and regularly carried by appeal or transfer to the Judge of the same Court (the Clerk being only the finger of the Court), being dismissed to be begun again before the same Judge, the above act does provide that the Judge shall have jurisdiction. Faison v. Williams, 121 N. C., 152; Roseman v. Roseman, 127 N. C., 494, and cases cited in the latter at page 497. If this were not so, our practice would be no whit better than when an action in covenant was dismissed because not brought in assumpsit, or an action in contract was put out of Court because not brought in tort, or when a man might be dismissed because his suit was not on the equity side of the docket when, after paying a big bill of costs, he could bring an action in the same Court at law. But here this adversary motion is not only made in an ex parte cause which had been terminated by final judgment, but if treated as a new action brought before the Clerk (when it should have been begun *132 to term) tbe record shows no appeal or transfer placing it before tbe Judge. Nothing indicates bow it got before him, or that it was rightly carried before him. There is nothing before us except his very proper judgment that, upon the record, he had no jurisdiction to grant the petitioner the relief she asks. There is nothing that by any construction under the most liberal practice puts the jurisdiction in the J udge. No error.