Dunn v. . Taylor, 121 S.E. 659

121 S.E. 659 | N.C. | 1924

Civil action to require the defendant, as sheriff of Lenoir County, to execute and deliver to plaintiff a tax deed for certain lands, bid off by plaintiff at a tax sale, and for which he holds certificate, duly issued by the defendant.

At the December Special Criminal Term, 1923, judgment by default was entered on motion of plaintiff and upon the showing that no answer had been filed by the defendant. Two days after the adjournment of said court in Kinston, and before the end of the week, the judge signed an order at his home in Clinton, N.C. directing that the judgment by default rendered in this cause be stricken out and canceled of record. From this order the plaintiff appeals. The December Term of court ended in Kinston when the judge left the bench for the term, although no notice was given of the final adjournment, and it was understood that the term of court should expire by limitation.Delafield v. Const. Co., 115 N.C. 21; Branch v. Walker, 92 N.C. 87. His Honor, therefore, was without authority to enter the order, signed at his home in Clinton, canceling or vacating the judgment previously rendered by him at term. The plaintiff's exception to this order must be sustained; but this will be done without prejudice to the rights of the defendant to assail the judgment rendered at the December term, or to have it vacated by motion in the cause or other appropriate remedy.

Error.