Ledbetter v. . PinnerLedbetter v. . Pinner
- Reporters:
- ,
- Before:
- ClaeK
(after stating the facts): The defendants insist that the judgment was irregular and shоuld have been set aside on four grounds:
1. Because it was entered outside of the county. It has been held that, as a rule, motiоns 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, applicаtions for restraining orders, injunctions and receivers being exprеssly excepted by Statute, The Oode, Sections 334-337 and 379, McNeill v. Hodges, supra; nor to orders in proceedings for examination of a party to the action under The Code, Sections 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 spеaking, and to be not applicable to orders in arrest аnd bail, ncr, 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 Oode, Seсtions 254, 25.j, which provide that the Clerk shall send the statement of the сase by mail or otherwise to the Judge, which contemplates that he need not be at the county seat, and that the Judge, if рarties 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, to-wit, at the Court House 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 sucb appeals can be beard at Chambers and аnywhere in the district.
2. The second ground is that the Judge gave the appellant’s counsel no notice. The Code, Section 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 а time and place for such hearing and give the attorneys of both parties reasonable notice thereof. ’ ’ Nothing in thе record indicates that such written request was made by counsel, and in its absence the presumption is in favor of the regularity оf the proceedings.
3. The third ground alleged is that the Judge, on reversing the Clerk’s order, should have simply remanded the proceеdings 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 Chapter 276, Acts 1887, vests the Judge with discretion to pursue either course. Clark’s Code, 2nd 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 fоr trial at term. The only controverted fact arising on the plеadings 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 faсt for the decision of the Clerk in the first instance, subject to reviеw by the Judge on appeal, whose conclusion is binding upon us. If thеre had been an issue of fact raised as to title, or solе seisin, this would have been for the jury at term.
Besides, if there had beеn an issue of fact raised, the defendant waived his right to a jury trial by not insisting *459 upon it before the Clerk made his order. Railroad v. Parker, 105 N. C., 246, and cases there cited.
In refusing to set aside the judgment there was no error.
No Error.