Skinner v. . Carter

Avery, J. after stating the facts: The procedure in special proceedings, instituted (under the provisions of The Code, ch. 47) for partition, or for sale for partition, is the same as where the relief sought in such proceedings is of a different character. The Code, § 1923. The rules of practice prescribed by the statute, where petitions are filed for the purpose of opening ditches through swamp lands, are also similar. The Code, § 1324. Where exceptions were filed to the report of commissioners appointed to lay off a drainage ditch, this Court compared the findings of fact made by them *108 to the verdict of a jury, which “must stand, unless set aside.” Railroad v. Ely, 101 N. C., 8. In Railroad v. Phillips, 78 N. C., 50, Justice RodmaN says: “There can be no appeal,in its ordinary acceptation, from the commissioners to the Superior Court, for the reason that they make their report directly to the Superior Court, just as a referee or master does.” It seem?, therefore, that even before the passage of the Act of 1887, ch. 276, which gives to the Judge power, whenever special proceedings are brought before him by appeal or otherwise, to make any order that could have been made by the Clerk, the report of commissioners appointed by the Clerk was treated by the Judge as if submitted directly to them, like that of a referee. It is well settled that where a case is heard on the report of a referee at term-time, the Court may, in the exercise of an admitted discretion, set it aside without assigning any reason for such action. Busbee v. Surles, 79 N. C., 51. But the counsel for the appellant cites and relies upon section 289 of The Code, which provides that “no report or return made by any commissioners shall be set aside and sent back to them or others for a new report by reason of any defect or omission not affecting the substantial rights of the parties, but such defect or omission may be amended by the Court, or by the commissioners by. permission of the Court.” If we concede that the discretionary power extends only to cases where the defect complained of does not affect a substantial right, it is obvious that if, in fact, it appeared from the report of the commissioners that they allotted to each of the tenants-in-common a share equal in extent but not in value to that of her co-tenant, or if the report failed to show affirmatively that the shares were, in their estimation, of equal value, the error which the Court was attempting to correct by re-reference was a radical and important one, involving the question whether they were guided by a just principle in making the partition. When such a question *109 was involved, the Judge might have heard the affidavits both of the defendant and the plaintiff, but he did not deem it best to do so, and no appeal lies from his refusal. Having the power to set aside the report, he. might also make any order that could formerly have been made bjr either the Clerk or the Judge under such circumstances. He might, therefore, have appointed new commissioners, or have ordered those already appointed to act again, or he was empowered to remand the proceedings, with directions to the Clerk to appoint others, as he did. Holding, as we do, that the Judge below had the power to remand to the Clerk, with instruction to appoint other commissioners because the omission of the commissioners affected a substantial right of the plaintiff, we think that the appeal is not premature and the action should not be dismissed for the reason that this case falls under the exception' laid down in Blackwell v. McCain, 105 N. C., 460, that an appeal does lie from interlocutory orders when “it puts an end to the action, or where it may destroy or impair a substantial right of the complaining party to delay his appeal. The Code, § 548. There is no error. Affirmed.