{
  "id": 8523734,
  "name": "GLADYS J. JENKINS and husband, ELBERT LEE JENKINS, Petitioners v. VERNON FOX and wife, DONNA FOX, and RANDALL FOX, Respondents",
  "name_abbreviation": "Jenkins v. Fox",
  "decision_date": "1990-04-17",
  "docket_number": "No. 8924SC803",
  "first_page": "224",
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      "cite": "N.C. Gen. Stat. \u00a7 46-19",
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  "last_updated": "2023-07-14T19:26:07.401162+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Eagles and Parker concur."
    ],
    "parties": [
      "GLADYS J. JENKINS and husband, ELBERT LEE JENKINS, Petitioners v. VERNON FOX and wife, DONNA FOX, and RANDALL FOX, Respondents"
    ],
    "opinions": [
      {
        "text": "ORR, Judge.\nThe sole issue on appeal is whether the evidence supported the trial court\u2019s findings of fact and conclusions of law. For the reasons set forth below, we reverse the trial court\u2019s order.\nUnder N.C. Gen. Stat. \u00a7 46-19 (1984), \u201cIf no exception to the report of the commissioners is filed within 10 days, the same shall be confirmed.\u201d The petitioners excepted to the report of the commissioners in a document filed on 1 August 1988, but stated no grounds for their exceptions. The statute does not require that exceptions be specific or contain specific grounds.\nRespondents argue that exceptions must be specific in order to put the opposing parties and the trial court on notice of what issues will be argued before the court. Further, respondents argue that it would place an undue burden on the court to examine the entire record and determine the grounds for exceptions.\nWhile we agree that the trial court and parties should have notice of the issues involved in any case, the only issue on appeal under \u00a7 46-19 is \u201cwhether the report of the commissioners should be confirmed ... by the clerk and, upon appeal from his order, by the judge.\u201d Allen v. Allen, 258 N.C. 305, 307, 128 S.E.2d 385, 386 (1962) (emphasis in the original). In determining whether the report should be confirmed, the trial court may \u201creview the report in the light of the exceptions filed, hear evidence as to the alleged inequity of division and render such judgment ... , as he deem[s] proper under all the circumstances . . . .\u201d Langley v. Langley, 236 N.C. 184, 186, 72 S.E.2d 235, 236 (1952).\nAn action for partition under N.C. Gen. Stat. \u00a7 46-1 (1984) is a special proceeding. When such action is appealed from the clerk to the superior court \u201cfor any ground whatever . . . ,\u201d the trial court has the authority to consider the matter de novo. Id. (citations omitted).\nIn the case before us, petitioners excepted to the commissioners\u2019 report under \u00a7 46-19. The above principles of law make it clear that the only issue before the trial court was whether the report should be confirmed. In making this determination, the trial court has the authority, de novo, to review the report, hear evidence and render the appropriate judgment. The trial court does not have the authority under \u00a7 46-1, et seq. to dismiss the appeal because petitioners did not state specific grounds why the commissioners\u2019 report should not be confirmed.\nWe note that originally petitioners excepted to the commissioners\u2019 report because the \u201cpartition was not in accordance with the value of the property.\u201d The commissioners reconsidered the partition and resubmitted it as before which was confirmed by the clerk. There is no question that petitioners\u2019 basis for excepting was as originally noted.\nWe therefore hold that the trial court erred in dismissing the appeal and remand for further proceedings consistent with this opinion.\nVacated and remanded.\nJudges Eagles and Parker concur.",
        "type": "majority",
        "author": "ORR, Judge."
      }
    ],
    "attorneys": [
      "Hal G. Harrison, P.A., for petitioners-appellants.",
      "Dennis L. Howell for respondents-appellees."
    ],
    "corrections": "",
    "head_matter": "GLADYS J. JENKINS and husband, ELBERT LEE JENKINS, Petitioners v. VERNON FOX and wife, DONNA FOX, and RANDALL FOX, Respondents\nNo. 8924SC803\n(Filed 17 April 1990)\nPartition \u00a7 7.2 (NCI3d>\u2014 appeal to superior court \u2014 exception without specific grounds \u2014 appeal dismissed \u2014 error\nThe trial court erred in dismissing an appeal from the Clerk of Court\u2019s acceptance of a commissioner\u2019s report in an action for partition by sale of real property where the trial court rejected the appeal on the grounds that the document filed by petitioners did not state specific grounds for any exception. N.C.G.S. \u00a7 46-19 does not require that exceptions be specific or contain specific grounds; the only issue before the trial court was whether the report should be confirmed, and, in making this determination, the trial court has de novo authority to review the report, hear the evidence, and render the appropriate judgment. The court does not have the authority to dismiss the appeal for a lack of a statement of specific grounds for not accepting the commissioner\u2019s report.\nAm Jur 2d, Courts \u00a7\u00a7 98, 122.\nAPPEAL by petitioners from judgment entered 5 June 1989 by Judge John Mull Gardner. Judgment entered out of session and out of term in YANCEY County Superior Court. Heard in the Court of Appeals 7 December 1989.\nThis action arose on 28 December 1987 when petitioners requested partition by sale of certain property under N.C. Gen. Stat. \u00a7 46-1, et seq. Respondents answered and requested that the land be partitioned by actual division.\nIn February 1988, the Clerk of Superior Court in Yancey County entered an order that actual partition of the land would be made. The clerk also appointed three duly qualified commissioners to divide the property.\nAfter viewing the property, the commissioners filed a report on 23 May 1988, setting forth the recommended division of the property. Petitioners excepted to this report on 2 May 1988, on \u201cthe grounds that the partition is not in accordance with the value of the property.\u201d\nOn 24 June 1988, a hearing was held to consider this exception, and the clerk ordered that the report be further considered by the commissioners. A supplemental report was filed by the commissioners on 21 July 1988, reaffirming their original division of the property.\nThe petitioners filed a handwritten document on 1 August 1988, with no caption, which stated: \u201cNow Comes Petitioners [and] respectfully excepts to the report of the Commissioners of record herein.\u201d The clerk subsequently rendered an Order of Confirmation on 29 September 1988.\nPetitioners appealed to superior court. On 10 May 1989, the trial court dismissed the appeal on the grounds that the document filed by petitioners on 1 August 1988 did not state specific grounds for any exceptions and was therefore invalid. An order was entered 5 June 1989.\nFrom this order, petitioners appeal.\nHal G. Harrison, P.A., for petitioners-appellants.\nDennis L. Howell for respondents-appellees."
  },
  "file_name": "0224-01",
  "first_page_order": 252,
  "last_page_order": 255
}