{
  "id": 8572513,
  "name": "GILBERT P. WELCH and husband, J. ARTHUR WELCH, Petitioners v. RUTH P. KEARNS and husband, AUSTIN F. KEARNS; A. M. PRIMM and wife, SARAH H. PRIMM; CLEO P. GREEN and husband, WALTER GREEN; RICHARD W. PRIMM and wife, GERTRUDE B. PRIMM, Defendants",
  "name_abbreviation": "Welch v. Kearns",
  "decision_date": "1964-01-17",
  "docket_number": "",
  "first_page": "171",
  "last_page": "172",
  "citations": [
    {
      "type": "official",
      "cite": "261 N.C. 171"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "259 N.C. 367",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8560622
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/259/0367-01"
      ]
    }
  ],
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  "last_updated": "2023-07-14T21:53:45.776989+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "GILBERT P. WELCH and husband, J. ARTHUR WELCH, Petitioners v. RUTH P. KEARNS and husband, AUSTIN F. KEARNS; A. M. PRIMM and wife, SARAH H. PRIMM; CLEO P. GREEN and husband, WALTER GREEN; RICHARD W. PRIMM and wife, GERTRUDE B. PRIMM, Defendants."
    ],
    "opinions": [
      {
        "text": "Higgins, J.\nThe facts are fully set forth by 'the Chief Justice. See 259 N.C. 367. In the first instance -the Clerk Superior Court had awarded the Commissioner $7,000.00 for his services. On appeal, the Superior Court Judge concluded as a matter of law that commissions were governed 'by G.S. 28-170, could not exceed five per cent, and reduced the 'allowance to- $3,500.00. The Commissioner appealed.\nThis Court held that G.S. 1-408 \u2014 not G.S. 28-170 \u2014 controlled, and remanded the proceeding for trial de novo before the judge holding the Superior Court of Davidson County. That decision is the law of tire case. When Judge Gambill, on the de novo hearing, in his discretion, fixed $5,'500.00 as just and reasonable compensation, his decision can only be set aside for abuse of discretion. \u201cThe rule is universal that the 'action of the 'trial court ais to matters within its judicial discretion will not 'be disturbed unless there is ia clear abuse thereof; or, as it is frequently stated, the appellate court will not review the discretion of the trial court. This rule, or rather this statement of the rule, does not give the -trial judge 'am entirely free hand in what might be termed discretionary matter\u00ae. The exercise of judicial discretion which may not be reviewed implies conscientious judgment, not arbitrary action, takas account of tire law and the particular circumstances of the case, 'and is directed by the reason and conscience of the judge toward a just result.\" 3 Am. Jur., Appeal and Eirror, \u00a7 959.\nThe judgment 'challenged by this appeal is\nAffirmed.",
        "type": "majority",
        "author": "Higgins, J."
      }
    ],
    "attorneys": [
      "W. H. Steed for defendant appellants.",
      "E. W. Hooper, Fred H. Morrison, Jr., for M. E. Gilliam, Commissioner, appellee."
    ],
    "corrections": "",
    "head_matter": "GILBERT P. WELCH and husband, J. ARTHUR WELCH, Petitioners v. RUTH P. KEARNS and husband, AUSTIN F. KEARNS; A. M. PRIMM and wife, SARAH H. PRIMM; CLEO P. GREEN and husband, WALTER GREEN; RICHARD W. PRIMM and wife, GERTRUDE B. PRIMM, Defendants.\n(Filed 17 January 1964.)\n1. Appeal and Error \u00a7 60\u2014\nThe decision on appeal becomes the law -of the case.\n2. Partition \u00a7 9\u2014\nThe amount of commission allowed by tbe -Superior Oo-urt to tbe commissioner selling lands for partition is governed by G.S. 1-408 and rests in tbe discretion of tbe court, and the court\u2019s order will not be disturbed in tbe absence of a showing of abuse of discretion.\n3. Appeal and Error \u00a7 46\u2014\nTbe action of tbe trial court as to matters within its judicial discretion will not be disturbed unless there is a clear abuse thereof.\nAppeal by defendants from Gambill, J., regular Jun-e 10, 1963, Session, DavidsoN Superior Court.\nThis proceeding was here at the Spring Term, 1963. The Court remanded with -direction that the Superior Court Judge fix the amount to be paid' to M. E. Gilliam, as Commissioner, for hiis services in the proceeding. In a de novo hearing, Judge Gambih found $5,500.00 to \u25a0be reasonable compensation and ordered payment from the proceeds of the sale. The 'defendants Kearns and Green excepted 'and appealed.\nW. H. Steed for defendant appellants.\nE. W. Hooper, Fred H. Morrison, Jr., for M. E. Gilliam, Commissioner, appellee."
  },
  "file_name": "0171-01",
  "first_page_order": 211,
  "last_page_order": 212
}