Opinion
(September Term, 1892.)
Report of Referee — Exceptions — Direction of Court — Appeal — Married Woman — Prayer for Relief.
1. When the report of a referee was filed and confirmed at the November Term, 1891, of court, and at the May Term, 1892, the court refused to recommit upon motion and exception made at that term: Held, such ruling was not reviewable in the Supreme Court.
2. Where it is not pleaded and does not appear that a person is a married woman, there is no presumption of law to that effect.
3. The facts stated, and not the prayer for relief, show what remedy ought to be granted.
APPEAL at May Term, 1892, of LENOIR, from Winston, J.
(322) George Rountree for plaintiff.
No counsel contra.
The report of the referee was filed and confirmed at November Term, 1891. The exception thereto and motion to recommit (323) 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 by 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. R. R., 93 N.C. 422.
AFFIRMED.
Cited: Adams v. Hayes, 120 N.C. 388; Reade v. Street, 122 N.C. 302; Collins v. Pettitt, 124 N.C. 736; Williams v. Bailey, 177 N.C. 44; Henofer v. Realty Co., 178 N.C. 586.
(324)