Short Answer

In North Carolina, the Clerk of Superior Court controls the partition calendar and may deny further continuances without good cause. Your attorney can object to another delay, ask for a firm scheduling order, and request the hearing proceed if proper notice was given and the other owner does not appear. The court can appoint commissioners or order a sale, use subpoenas to keep the case moving, and, in cases of bad-faith delay, shift certain costs.

Understanding the Problem

You want to know whether your North Carolina partition case can move forward when a co-owner keeps stalling. The decision-maker is the Clerk of Superior Court, and the relief you need is a timely hearing so the partition (division or sale) can proceed. One key fact here: the hearing was postponed once and is scheduled for tomorrow.

Apply the Law

Partition in North Carolina is a special proceeding filed with the Clerk of Superior Court in the county where the property sits. Once the right to partition is established, the clerk either appoints commissioners to divide the land or orders a sale if division would cause substantial injury. The clerk manages scheduling, can grant or deny continuances for good cause, and can issue orders to keep the case on track. Subpoenas are available to compel attendance or documents. If a party fails to appear after proper notice, the clerk may proceed and enter orders. Orders from the clerk in special proceedings can be appealed to the superior court judge under tight timelines. Sales are subject to statutory upset bids, which can extend closing.

Key Requirements

• Proper notice: Ensure respondents were served and had fair notice of the hearing so the clerk can proceed even if someone does not appear.
• Good-cause continuances: The clerk may continue a hearing for good cause, but repeated delays without new, solid reasons can be denied.
• Scheduling control: Ask for a written scheduling order with firm dates for any discovery, commissioner appointment, reports, and objections.
• Compulsion tools: Use subpoenas to obtain documents and witness attendance so delay doesn’t starve the record.
• Next-step orders: Request immediate appointment of commissioners or an order of sale once the right to partition is determined.
• Appeal path: If necessary, appeal the clerk’s order to the superior court judge within the special-proceeding appeal rules.

What the Statutes Say

• North Carolina Gen. Stat., Chapter 46A (Partition) – Establishes the partition process, including division in kind, sale, commissioners, and reports.
• North Carolina Gen. Stat. § 1-301.2 (Appeals in special proceedings) – Provides for appeals from the clerk to the superior court judge in special proceedings.
• North Carolina R. Civ. P. 45 (Subpoenas) – Authorizes subpoenas to compel documents and testimony before the clerk.
• North Carolina Gen. Stat. § 1-339.25 (Upset bids) – Sets a 10-day upset bid period after a reported sale, which can extend closing.

Analysis

Apply the Rule to the Facts: With one prior postponement and a hearing set for tomorrow, your attorney can object to any renewed continuance absent new, specific good cause, and ask the Clerk of Superior Court to proceed. If the other owner does not appear after proper notice, the clerk can take evidence and enter appropriate orders. If the right to partition is established, your attorney can ask the clerk to appoint commissioners or order a sale now. If a sale occurs, plan for potential upset bids, which can extend the closing timeline.

Process & Timing

1. Who files: Your attorney. Where: Clerk of Superior Court in the North Carolina county where the property is located. What: Motion to proceed/deny continuance and request for a scheduling order; request for appointment of commissioners or order of sale. When: File before or at the start of the hearing; ask for a firm setting and written deadlines.
2. The clerk hears argument on any continuance, then, if proceeding, determines the right to partition and issues next-step orders (commissioners or sale). Commissioners typically receive deadlines for inspection, division, and reporting; sale timelines follow judicial sale procedures.
3. For sales, the report of sale triggers a statutory upset-bid window; once closed and confirmed, the commissioner delivers a deed. For divisions, the clerk reviews the commissioners’ report, rules on objections if any, and enters a final order.

Exceptions & Pitfalls

• Heirs’ property rules can add appraisal and buyout steps that extend timelines; ask early whether those apply.
• Improper or incomplete service invites continuances; confirm Rule 4 service and keep proof handy.
• Title disputes or related claims may be transferred to superior court, which can add time; narrow issues for the clerk when possible.
• Failing to request a written scheduling order leaves deadlines loose; ask the clerk to set clear dates and recording of the hearing to preserve issues for appeal.

Talk to a Partition Action Attorney

If you’re dealing with repeated delays in a North Carolina partition case, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at [919-341-7055].

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.