27 S.E. 123 | N.C. | 1897
The defendants insist that the judgment was irregular and should have been set aside on four grounds:
1. Because it was entered outside of the county. It has been held that, as a rule, motions in causes pending in the Superior Court cannot be heard outside of the county except by consent. McNeill v. Hodges,
2. The second ground is that the Judge gave the appellant's counsel no notice. The Code, sec. 255, provides that if the Judge "shall have been informed in writing by the attorney of either party that he desires to be heard on the questions, the Judge shall fix a time and place for such hearing and give the attorneys of both parties reasonable notice thereof." Nothing in the record indicates that such written request was made by counsel, and in its absence the presumption is in favor of the regularity of the proceedings.
3. The third ground alleged is that the Judge, on reversing the Clerk's order, should have simply remanded the proceedings to the Clerk to enter the proper order in conformity with the opinion of the Judge, and not have made the order directing the sale himself. This was formerly so, Tillett v.Aydlett,
4. That the pleadings raised an issue of fact and the cause should have been transferred to the docket of the Superior Court for trial at term. The only controverted fact arising on the pleadings was as to the advisability of a sale for partition or an actual division. This was not an issue of fact, but a question of fact for the decision of the Clerk in the first instance, subject to review by the Judge on appeal, whose conclusion is binding upon us. If there had been an issue of fact raised as to title, or sole seisin, this would have been for the jury at term.
Besides, if there had been an issue of fact raised, the defendant waived his right to a jury trial by not insisting upon it before the Clerk made his order. R. R. v. Parker,
In refusing to set aside the judgment there was
No error.
Cited: Faison v. Williams,