Johnson v. . Loftin

16 S.E. 179, 111 N.C. 319

• Court: Supreme Court of North Carolina
• Decided: September 5, 1892
• Status: Published

Opinion

Clark:, J.:

The report of the referee was filed and confirmed at November Term, 1891. The exception thereto and motion to recommit the report for an additional finding of fact at May Term, 1892, were too late as a matter of right, and could only have been allowed as a matter of discretion. The refusal of the Court was therefore not reviewable. McNeill v. Hodges, 105 N. C., 52.

The other three exceptions were to the report of sale, but were unsupported by anything appearing in the record or ■otherwise. The Court overruled these exceptions and found that the commissioner was not a party to nor interested in the action, that the sale was open and fair, and that the land brought a fair price. These exceptions present no matter of law, and the findings of fact by the Judge below are not reviewable. Barrett v. Henry, 85 N. C., 321; Davie v. Davis, 108 N. C., 501.

Nor is there anything in the pleadings and findings of fact, nor is it suggested b} affidavit, that the plaintiff Johnson is a married woman. There is no presumption of law that she was. It does not appear from the pleadings even that she was a woman. There is, however, a presumption that the action of the Court below was correct. Rencher v. Anderson, 95 N. C., 208. The burden is on appellants to show that there was ■error. This has not been done.

Nor is it material whether or not there was a prayer in the pleadings for a personal judgment. The Court should grant ■such relief as the allegations and proof warrant, whether' demanded in the prayer for relief or not. Moore v. Nowell, 94 N. C., 265; Skinner v. Terry, 107 N. C., 103; Knight v. Houghtaling, 85 N. C., 17; Patrick v. Railroad, 93 N. C., 422.

Per Curiam. No Error.