Herbin v. Wagoner

Faircloth, C. J.: The defendant appellant had her ease on appeal duly served on plaintiff’s attorney, who prepared his exceptions thereto and returned the same, with his copy, to an attorney supposed by him to represent the appellant, without any acceptance or service by the sheriff. These papers remained with said attorney, and the papers were never sent to the judge who tried the case, and no case was settled for this Court by the judge. The appellant had the transcript docketed in this Court with her case on appeal. The plaintiff appellee now comes and moves for an order for a writ of certiorari to be issued to the lower court to settle the case, alleging on affidavit, among other things, that said attorney did represent defendant in the superior court, that service was waived, and an agreement, (verbal) that the papers should be sent to the judge to settle the case, &c. These allega [660] tions, by affidavit, are denied by the attorneys alleged to have represented the appellant in the superior court. This Court would be embarrassed with the unpleasant duty of finding facts at issue between members of the bar but for the statute and rules and decisions of this Court to the effect that a case on appeal, or counter case, must be served by the sheriff, unless service be accepted in writing and made a part of the record. This case illustrates the reasonableness of such rules. Assuming, then, for the sake of argument only, that the plaintiff’s allegations are true, that the counsel represented the defendant, we cannot grant his petition for the reason that the waiver is denied and the counter case was neither duly served nor accepted in writing. State v. Price, 110 N. C., 599; Forte v. Boone, 114 N. C., 176; Sondley v. Asheville, 112 N. C., 691; Graham, v. Edwards, 114 N. C., 228, and cases cited ; Rule 39 of Supreme Court. 1. It appears that certain lands were partitioned among the plaintiffs and confirmed by decree of the court, and that in the division a mistake was made by the draftsman of the commissioners’ report in allotting Lot No. 1 to the heirs of Robert Herbin, instead of W. H. Herbin, and that said land was afterwards sold for assets as the property of Robert and purchased and paid for by Simeon Wagoner, and deed made by order of the court. 2. That subsequently the administratrix of Wagoner sold the same land for assets, and the defendant Mary E. Wagoner purchased and paid for the land and received a deed under a decree of the court. In June, 1895, the plaintiffs, who were } arties to the original proceeding, notified defendant to show cause in that original proceeding why said mistake should not be corrected by amending the record therein, and it was adjudged by the court that such amendment be m ade and defendant appealed. In all of said pro [661] ceedings all proper parties were before the court and it is not denied that the court had jurisdiction of the parties and the subject matter. The question is now presented whether the plaintiffs, who were parties to the action in which the mistake occurred, or the defendant, who was not a party and is a purchaser for value and without notice, shall bear the loss or inconvenience of the mistake. The law favors protection to innocent purchasers at judicial sales, and all respectable courts have held that they should be protected against irregularities under their decrees when the jurisdiction is complete, even on amotion in the original cause. The question was well considered by this Court in Sutton v. Schonwald, 86 N. C., 198, and it was held accordingly that the purchaser’s title was not rendered invalid by the reversal of the decree on account of irregularity in the proceeding, of which the purchaser had no notice. . In that ease the defendant acted as guardian of two infants, being, however, guardian for only one, and sold the land-of both under an order of the court, and the sale was upheld. The Court said : “ Hence it is that a purchaser, who is no party to the proceeding, is not bound to look beyond the decree, if the facts necessary to give the court jurisdiction appear on the face of the proceeding. If the jurisdiction has been improvidently exercised, it is not to be corrected at his expense, who had the right to rely upon the order of the court as an authority emanating from a competent source — so much being duo to the sanctity of judicial proceedings, and upon every principle of policy or strict right it should not be allowed to be reversed (though -in a direct proceeding in the same court) at the cost of an innocent purchaser.” The injured party must look elsewhere for his redress. [662] We have many other decided cases of the same import, in which the rights of third persons are protected. Morris v. Gentry, 89 N. C., 248; England v. Garner, 90 N. C., 197. In this case it was sufficient for the defendant to see jurisdiction and a final decree, and she was justified in presuming that the proceedings, on which the judgment was entered, were regular. Error.