33 N.C. App. 365 | N.C. Ct. App. | 1977
In their first assignment of error, appellants contend that Judge Collier lacked authority to enter his order of dismissal and entry of default. This contention has merit.
This action was instituted, and at all times thereafter has been pending, in Alexander County. The record discloses that Judge Collier heard the motion for and entered the order of dismissal and entry of default in Iredell County. Although Iredell and Alexander Counties are both in the Twenty-Second Judicial District, and Judge Collier is the resident judge of that district, we think his action in this case was unauthorized.
In 1 McIntosh, North Carolina Practice and Procedure (2d ed. 1956) § 126, pp. 72-73, we find:
Hearings before a judge outside the courthouse or out of the regular session of the Court are said to be at chambers, and such matters are called “in chambers business.” Such hearings may be had in some cases by express statutory provisions and in others by consent of the parties, and may include all questions in a pending action, except the trial of issues of fact by a jury. The place of conducting “in chambers” business is ordinarily not material so long as it is conducted within the county in which the action is pending. But where “in chambers” business is conducted outside the county of pending action, it must be specifically authorized by statute or the parties must have consented. And where consent is given, it is held that such consent must appear on the face of the record.
In Patterson v. Patterson, 230 N.C. 481, 484, 53 S.E. 2d 658, 661 (1949), the Supreme Court stated that “ ... in this State a judge of the Superior Court has no authority to hear a cause or to make an order substantially affecting the rights of the parties outside of the county in which the action is pending unless authorized so to do by statute, or by consent of the parties.”
Even as to regular judges “it is the uniform holding in this jurisdiction that, except by consent, or unless authorized by statute, a judge of the Superior Court, even in his own district, has no authority to hear a cause or to make an order substantially affecting the rights of the parties, outside the county in which the action is pending.” Bisanar v. Suttlemyre, 193 N.C., 711, 138 S.E., 1; S. v. Humphrey, 186 N.C., 533, 120 S.E., 85; Scott Drug Co. v. Patterson, 198 N.C., 548, 152 S.E., 632; Bank v. Hagaman, 208 N.C., 191, 179 S.E., 759; S. v. Whitley, 208 N.C., 661, 182 S.E., 338.
We also note Chappell v. Stallings, 237 N.C. 213, 74 S.E. 2d 624 (1953), where an action to foreclose a tax lien on property was brought in Perquimans County and judgment by default was entered. Before the foreclosure sale was held, a temporary restraining order was issued enjoining the sale of the land until further notice of the court. A show cause hearing was held in Elizabeth City where Judge Williams determined that the commissioner was authorized and permitted to proceed with the sale of the land. In a dictum statement the Supreme Court stated:
“We know judicially that Elizabeth City is the county seat of Pasquotank County. Judge Williams was precluded from passing on the merits of the motion in the cause at Elizabeth City under the procedural rule that except by consent or in those cases specially permitted by statute, the judge can make no orders in a cause outside of the county in which the action is pending.”
This case is governed by the quoted rule. Certainly the order of dismissal and entry of default affected substantial rights of appellants. They did not consent for the motion to be heard in Iredell County and our research fails to disclose any statute authorizing Judge Collier’s action in that county. We hold that the order of dismissal and entry of default was invalid.
Appellants assign as error entry of the judgment by Judge Barbee. Since this judgment was predicated on the entry of
Appellants assign as error the order of Judge Collier entered 13 April 1976 denying their motion for relief from his previous order and the judgment of Judge Barbee. We hold that this order also should be vacated and it is so ordered.
The orders and judgment appealed from are vacated and this cause is remanded to the Superior Court of Alexander County for further proceedings.
Remanded.
