Thompson v. . Shamwell

SMITH, C. J., after stating the above. Without assenting to the irregular method pursued for obtaining a correction of alleged errors in the records of a court by amendments, the propriety of which rests in the sound discretion of the judge, and of the sufficiency of the evidence of such error ho must determine, it is to be observed that the proposition is, not to show that the record does not truly state the action of the court in adopting the report of partition and confirming the distribution of the shares by the well-defined lines which bound them, but to correct misapprehensions in the minds of the commissioners as to the location of the lines as described; in other words, it is to give effect to unexpressed intentions, by conforming the report and confirming judgment, to them. This, too, the court is asked to do, when ample, opportunity was afforded to each tenant to examine the report, and the omission to do so is the result of his own neglect and inattention, after an acquiescence of seven years under the apportionment of the respective shares. Under such circumstances, a court would be reluctant to disturb its own solemn judgments and the rights and interests which have grown up on their assumed stability and permanence, especially upon the suggestion of so small a diminution in the area of the share assigned to and accepted by the complaining tenant. *286 Nor need we advert to the indefiniteness of the material inquiry to be made by the jury, was there a mistake? not what are the facts wherein it consists, since this could have been rendered more specific and made to conform to the petitioner’s allegations if they were any more specific themselves. The entire record was in the superior court, transmitted in conformity to the practice pointed out in Jones v. Hemphill, 77 N. C., 42, and Wood v. Skinner, 79 N. C., 92. While we do not say it was error in the presiding judge, upon an inspection of the papers in the cause, to decline to submit the issues upon his consideration of the merits of the application as presented in the affidavit offered for the petitioner, his action was fully warranted on the ground that the original cause being ended, the remedy, if any, was by a new action, begun by summons, and not by motion, as established by repeated adjudications, Covington v. Ingram, 64 N. C., 123; Thaxton v. Williamson, 72 N. C., 125; Peterson v. Vann, 83 N. C., 118; England v. Garner, 84 N. C., 212; and originating in the probate court, Wahab v. Smith, 82 N. C., 229. While the consequences to the parties are the same, the appropriate course in the superior court upon the ruling was to award a procedendo to the probate court wherein the original record was, directing the relief to be refused and the proceeding dismissed, as would clearly .have been the mode of proceeding if the adjudication had been favorable to the petitioner and the issues tried, in order tha| the relief be administered in the probate court, Hoff v. Crafton, 79 N. C., 502; Capps v. Capps, 85 N. C., 408. While wrn affirm the ruling of the court that the proceeding cannot be sustained, we correct the error in the manner of disposing of the cause by directing the ruling to be certified with a procedendo to the probate court for the dismissal of the application, and it is so adjudged. Let this be certified. No error. Affirmed.