Edwards v. Cobb

MerjRIMON, J. (after stating the facts as above). In this, and like cases, the Clerk of the Superior Court does not act in the place of, and for that Court, but he exercises jurisdictional functions conferred upon him as Clerk, separate and distinct from his duties as Clerk to the Court. Although the office of Probate Judge is abolished, nevertheless jurisdiction over matters of probate, and some other matters — particularly specified— is conferred upon the Clerk. The scope of his office is enlarged, so as to embrace this authority, distinct from his other ordinary duties, and he exercises judicial authority in the way prescribed, as certainly as if he were denominated Judge of Probate, and were not such Clerk. It seems that the Legislature deemed it wise, on the score of economy and convenience, to place the juris [8] diction in respect to matters of probate, in close connection with the Superior Courts, so that issues of fact arising before the Clerk, might be tried by a jury under the supervision of these Courts, and errors of law, and errors in other respects, of the Clerk, might be promptly corrected by them. In case issues of fact, to be tried by a jury, shall be raised, these must be transferred to the Superior Court for trial at the next succeeding term thereof, and if issues of law shall be raised, the complaining party may appeal to the Judge having jurisdiction, either in vacation or in term. It will be observed that the jurisdiction of the Clerk is distinct from that of the Superior Court, and therefore, it is proper for the latter to remand the issues when tried, for other proper proceeding or matters in a proper case, to the Clerk. The Code, §§102, 116; Brittain v. Mull, 91 N. C., 498. The Clerk of the Superior Court clearly had original jurisdiction of the application to remove the defendant as execuior, and power to remove him in a proper case. It has been so decided repeatedly, and it is so expressly provided by statute. The Code, §§103, par. 3, 1397, 1400, 2171; Barnes v. Brown, 79 N C., 401; Simpson v. Jones, 82 N. C., 323; Murrill v. Sandlin, 86 N. C., 54. Whether the jurisdiction of the Clerk is exclusive iu such case, or whether the Superior Court, in administering principles of equity, may exercise the like original jurisdiction, are questions we are not now called upon to decide. There is no statutory method of procedure prescribed, to be observed by the Clerk in the exercise of his authority in matters of probate. His proceedings are summary in their nature, and should always be put in such shape as to present all that he does in the course of a proceeding, including his orders and judgments, intelligently, and so that the same may be distinctly seen and understood. To this end, he is required to keep certain permanent records of proceedings before him. The Code, §112. In cases like the present one, the application might be made by any person rightfully interested, by petition or motion in writing, [9] or formal complaint, setting forth and alleging the grounds of the application, supported by one or more affidavits; and the allegations thus made, might be met by demurrer in a proper case, or by answer, denying or admitting the matters alleged, and alleging all proper matters of defence, supported by affidavits. In this and similar cases, the proceeding is begun by an order made by the Clerk to show cause, &c., a copy or notice of which must be served on the party charged or proceeded against. The Code, §§108, par. 4, 2171. This proceeding is neither a civil action nor a special preceed-ing under the Code of Civil Procedure. Its purpose is not to litigate the alleged rights and liabilities of adverse parties, settle the same, and give judgment against one party in favor of another, but it is to require one who is charged by the law with special duties and trusts, for whosoever may be interested, to show cause why, in some cases, he shall not give such bond as may be required of him, conditioned for the faithful discharge of his duties, and in others, why he shall not be removed from his place or office, because of some disqualification, malfeasance, misfeasance or nonfeasance, that disqualifies or unfits him in that respect, and renders it necessary that he shall be promptly removed from it. While ordinarily, some person or persons rightfully interested, should make the application for such removal, suggest the grounds for it, and produce the appropriate and necessary proofs in that behalf, and become parties to a proceeding for the purpose, and responsible for costs, the Clerk, iu the exercise of his jurisdictional powers, requires the executor or administrator, as the case may be, to answer before him and show cause, or be removed from his office, to the end that the interests of the estate may be subserved and the rights of parties interested protected by his removal, and the appointment of a suitable person in his stead. The Clerk has power, as we have seen, for proper canse, to make such removal, and pending any litigation in that respect, to make all necessary interlocutory orders for the protection and better securing of the estate. The Code, §1521; Taylor v. Biddle, 71 N. C., 1; In re Brinson, 73 N. C., 278. [10] Ordinarily, in such matters, issues of fact do not arise — only questions of fact are presented, and the Clerk hears the matter before him summarily — he finds the facts from affidavits and competent documentary evidence, and founds his orders and judgments on the same. He may, in his discretion, in some cases, direct issues of fact to be tried by a jury, and transfer them to the Superior Court to be tried, as directed by The Code, §116, but regularly he will not. No doubt, in some cases, he ought to do so. And also, by virtue of this section, the executor or administrator, or any person interested, may appeal from the findings of fact and the judgment of the Clerk, to the Judge having jurisdiction in term time, or in vacation, and the Judge may review the findings of fact, if need be, and decide such questions of law as may be raised, affirm, reverse or modify the order or judgment of the Clerk, and remand the matter to him for such further action as ought to be taken. From the judgment of the Judge, an appeal would lie to this Court, and errors of law only should be assigned. The Judge in reviewing the findings of fact, might, in his discretion, direct proper issues of fact to be tried by a jury, for his better information, and in some cases it may be he ought to do so. The statute conferring power on the Clerk to remove executors and administrators, does not prescribe in terms how the facts in such matters shall be ascertained, but it plainly implies that he shall act promptly and summarily. Applying general principles of law, the method of procedure we have above indicated, or one substantially like it, is the proper one. Rowland v. Thompson, 64 N. C., 714. Indeed, it has been in a measure repeatedly recognized. McFadyen v. Council, 81 N. C., 195; Murrill v. Sandlin, 86 N. C., 54. The Clerk, in this case, obviously treated the verified complaint and answer as affidavits, as he might do. In addition, he had immediate access to the records of his office, and might ex mero motu look to the same, and see whether the defendant had filed such inventories, accounts and reports, as the law [11] required him to do. Upon such evidence he found the facts, and made the first order appealed from by the defendant to the Judge at Chambers. The latter, for some reason not stated, remanded the matter. Thereupon, the Clerk, upon the same, or a like finding of facts, made a second order requiring the defendant- to give a bond, conditioned that he would duly and faithfully administer the estate in his hands. The defendant, gave notice of an appeal, but it seems he did not prosecute the same. He failed to give the bond required of him within the time designated in the order, and the Clerk made the order of removal, and appointed an administrator de boyiis non cum testamento annexo in his stead. From this order he appealed to the Judge —upon what grounds does not appear. No exceptions as to the findings of fact are set forth, nor are errors of law assigned. The Judge simply affirmed the judgment of the Clerk. In this we perceive no error. The judgment of the Clerk was not void— he had authority to find the facts, and upon his findings there was cause for the removal. He found that the defendant was insolvent and incompetent — that he had made no proper returns of the assets in his hands, or how he had disbursed the same, and in effect that he had mismanaged the estate. This was good and sufficient cause for the order of removal. As no errors are assigned, and the Clerk has made findings of fact and orders that he had authority to make, the judgment must be affirmed and the matter remanded to the Superior Court, with directions to that Court to remand the same to the Clerk for such further action before him as may be required in that behalf. No Error. Affirmed.