The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1900-05-19
SUPREME COURT DECISIONS.
(Reported by Jos. L. Seawell)
PERSON VS.. LEARY. Error.

PERSON VS.. LEARY. Error.
The right to sue in this State, on the
part of receiver appointed by thc court
of another State. will not 0e recognized
unless proof of dissolution of the con-
Germ and appointment of receiver is ;,aGe
by a certified copy of the order. That the
receivers in this case are plaintiifs Goes
not give them rights as receivers of the
bank-their alleged appointment as such
being denied in the answer.
The want of such certified copy is a de-
feet of proof in making out a prima facie
case in the court below, and cannot be
cured by offering the certified copy in this
court after appeal and argument, and
hence there is no ground for amendment
here under Section 965 of The Code.
CONKEY VS.. LUMBER CO. Affirmed.
The ruling in this case 124 n. c., AZ
affirmed Plaintiff and defendant were
tenants in common, and possession of de-
PENDANT not having been adverse for 20
years, was the possession of plaintiff.
The contention that Section 143 of The
Code was a statutory plea in bar and
shifts the burden of proof on plaintiff
cannot be sustained. And the presump-
tiCn created by Section 146 can only be re-
butted by proof that defendant had been
in adverse possession for 20 years.
WILLIAM LAssITER VS.. RAILROAD.
Affirmed.
The court below may in it's discretion
change the place of trial Of an action
where the convenience of witnesses and
the ends of Justice would be promoted
(Code Sec. 1859 and its action is not re-
viewable Nor is the discretion restrict
ed to the expiration of the time of an
swering, nor to cases where the suit is
brought in the wrong county. And the
removal may be to a county in another
judicial district.
BATTERY PARK BANK VS.. WESTERN
CAROLINA BANK. Error.
An appeal lies from an order confirm
ing a receivers report mot fin2D ard
overruling exceptions to commissions al
lowed the receiver, and is a final iuds
ment in respect to the matters excepted
to.
This court has power to review allow
ance of commissions to receivers, as we'll
as to executors, etc, where the allowance
has been given on a wrong principle or
appears to be clearly inadequate or excess
Sive.
An allowance of $3.50 to one bank re-
ceiver as commissions for months ser
vice and 81 800 to the other for ten and
a half months service, with $1,000 for
legal advice and $1,06633 for services of a
clerk and stenographer is held to- be
clearly excessive.
AS a general rule receivers may be
paid at stated intervals during the con-
tinuance of the receivership.
The language of Section 1924 and
$40 ca of The Code being identical the
same principle applies to both. and they
are construed as allowing commissions
not to exceed five per cent on receip.s
and five per cent on disbursements to re-
ceiverS administrators, etc: and such mat
ter is renewable by the Supreme court.
attention is called to the unnecessary
appointment of more than one receiver
and the allowance of excessive commits
sions.)
CLINE VS.. RUDISILL Affirmed
Action before a justice for labor and
material furnished. On March 18th de-
PENDANT rendered and deposited with the
Justice 1888 and accrued costs lin full
tender of all Indebtedness to plaintiff.
On March 14th the justice rendered iuGg-
ment in favor of plaintiff for So - and
defendant appealed. On April 18th follow
ing, plaintiffs attorney filed n receipt, to-
wit: Received of S. p. s., the justice Of
the peace the $1S.93 paid into court and
fees to use of plaintiff This money is
taken out and receipt given after ludg-
ment-plaintiff claiming still the balance
due"
Held. that when plaintiff accepted ana
received the amount of the tender AMI
deposit he did so with the condition All
terms annexed, and the judgment of the
Superior court that defendant go without
day and recover his costs accruing sirce
the appeal. is affirmed. Kerr vs.. San
ders, 122 y. c., 635; Code Sec. 51i cited.
AUSTIN VS. STEWART. Error.
An order OF reference peuling the de-
termination Of a plea in bar is erroneous,
and an appeal from such order is not pre-
mature.
A referee has no power to dismiss an ac-
ton for want of jurisdiction in the Super
ior court. The amount demanded in good
faith determines the jurisdiction.
Where MORTGAGE. purchases through
another at his own sale, the mortgegcr,
upon proof of such fact may disaffirm
the sale and procure an order of resale;
but he cannot affirm in part and disaf-
firm in part, and having once elected to
affirm the sale he is estoppel to after
wards disaffirm it, and is entitled only to
the sum the land brought after deducting
the mortgage debt and legitimate cost IF
sale, subject to any counter claim which
may be legally pleaded. !'roneberger
Lewis. 70 n. c. 426. cited and distin-
guished.
MERRIMON vs.. LYMAN. Modified ana
affirmed.
Where on trial of an action involving a
tax title the jury find that the land was
redeemed from the tax lien at the time
of its sale for payment of taxes, no lien
for the amount paid by the purchaser can
be declared upon the land and 1t was ser-
ror in the trial JUICE to allow stay Of
execution of the judgment upon 4 certi-
ficate from this court affirming the ruling
of the court below, pending The purchas-
er's motion for a lien.
When this court has affirmed a JUG
ment, the court below has no power 10
L. L.