Cooper v. Cooper.

37 S.E. 493 | N.C. | 1900

This is an action to set aside a judgment for $5,000 obtained by one of the defendants against the other in Iredell Superior Court, and asks an injunction against sale under the execution issued on said judgment. The parties are the same as in Cooper v. Cooper, ante 490; and the facts are the same, except as to the amount of the judgment (which in this case is not by confession) and the court in which it was (493) obtained. Hence this case is governed by the opinion in that. The appellants, indeed, make the additional objection that the injunction to the hearing was granted at Asheville, in the Twelfth Judicial District, in this action, which was pending in Iredell Superior Court, in the Eighth Judicial District. This objection would have been effective if made at the hearing of the motion to continue the injunction to the hearing. Hamilton v. Icard, 112 N.C. 589. But no objection was made at the time, and the point was only referred to when making up the case on appeal. The objection, being in the nature of an objection to the venue, must be deemed to have been waived. Indeed, The Code (sec. 337) expressly provides that the parties may by stipulation in writing agree that any specified Judge may hear such motion for an injunction to the hearing, and forward the papers to said Judge, with the agreement attached. There being no inherent defect of jurisdiction, therefore, the personal appearance of counsel before such other Judge, and argument without exception taken, must be taken as a waiver. Crabtree v.Scheelky, 119 N.C. 56. Had the exception been taken, Judge Allen would, of course, have sent the papers to the proper Judge. An injunction granted under such circumstances, should not be held either void or erroneous because of defect of venue. But, for the reasons given in the case between same parties at this term in the appeal from Buncombe, we must hold that the injunction was improvidently granted.

Reversed.

(494)