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,99 N.C. 248; Godwin v. Monds, 101 N.C. 354; Skinner v. Terry,107 N.C. 103. This restriction does not apply to all orders in such cases, applications for restraining orders, injunctions and receivers being expressly excepted by statute, The Code, secs. 334-337 and 379, McNeillv. Hodges, supra; nor to orders in proceedings for examination of a party to the action under The Code, secs. 580, 581; Fertilizer Co. v.Taylor, 112 N.C. 141. Indeed, the restriction was fully considered and held, in Parker v. McPhail, 112 N.C. 502, to apply only to judgments on the merits or motions in the cause, strictly speaking, and to be not applicable to orders in arrest and bail, nor, indeed, to any other ancillary remedy. Appeals from the Clerk and special proceedings have never been subject to the restriction and are governed by The Code, secs. 254, 255, which provide that the Clerk shall send the statement of the case by mail or otherwise to the Judge, which contemplates that he need not be at the county seat, and that the Judge, if parties desire to be heard, shall "fix a time and place for the hearing," which would be a contradiction if the Judge were required to be at a time and place already fixed by statute, towit, at the courthouse of the county of the Clerk from whom the appeal came. From the very nature of the proceedings on appeal from the Clerk to the Judge, it is clear that (458) such appeals can be heard at chambers and anywhere in the district.
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, 93 N.C. 15; but now chap. 276, Acts 1887, vests the Judge with discretion to pursue either course. Clark's Code, 2 Ed., p. 198; Lictie v.Chappell, 111 N.C. 347.
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, 105 N.C. 246, and cases there (459) cited.
In refusing to set aside the judgment there was
No error.
Cited: Faison v. Williams, 121 N.C. 153; McCaskill v. McKinnon, ib., 195; Beckwith ex parte, 124 N.C. 115; Herring v. Pugh, 126 N.C. 860;Roseman v. Roseman, 127 N.C. 497; Moore v. Moore, 130 N.C. 334;Anderson, In re, 132 N.C. 247; Navigation v. Worrell, 133 N.C. 94;Durham v. Rigsbee, 141 N.C. 130; Oldham v. Rieger, 145 N.C. 257; Battsv. Pridgen, 147 N.C. 135; Tayloe v. Carrow, 156 N.C. 8; Vanderbilt v.Roberts, 162 N.C. 274.