Conestee Chemical Co. v. Long

AdaMS, J. In tbe judgment to wbicb tbe parties expressly consented it was provided tbat tbe commissioner should make sale within sixty days from tbe date of tbe order. Tbe judgment was rendered as of tbe May Term, 1921, but bis Honor found tbe facts to be tbat it was “signed and entered” on 3 June, and tbat tbe sale was made on 1 August, and within tbe time prescribed. Tbe relation of a judgment to tbe first day of tbe term applies when tbe judgment is rendered during a term and docketed during tbe same term, or within ten days after tbe adjournment. C. S., 613. Tbe statute does not purport to apply to a judgment signed out of term, and a judgment nunc pro tunc, though by agreement, is not allowed to take effect by relation to tbe prejudice of third parties. Hardware Co. v. Holt, 173 N. C., 310; Ferrell v. Hales, 119 N. C., 199. Tbe defendant’s first assignment of error therefore cannot be sustained. Tbe second and third assignments involve questions of fact. There was evidence to support each finding, and it is well established tbat in such cases tbe facts as found by tbe trial judge are not subject to review in this Court. Harris v. Smith, 144 N. C., 439; Jordan v. Bryan, 103 N. C., 59; Strauss v. Frederick, 98 N. C., 60. Tbe defendant further assigned as error bis Honor’s confirmation of tbe commissioner’s sale and tbe order directing tbe clerk to credit tbe judgment witb tbe proceeds of tbe sale, less tbe expenses. In our view of tbe law it is not necessary to discuss tbe various contentions in behalf of and in opposition to tbe order confirming tbe sale. Whether a judicial sale should be confirmed is ordinarily a matter within tbe sound equitable discretion of tbe court. True, tbe discretion must be exercised reasonably and not arbitrarily; but if it appears tbat tbe sale was free from deception and unfair advantage, and tbat tbe order of confirmation was made in tbe exercise of a discretion wbicb was not abused, tbe *400 courts “will not be astute to find objections.” Sutton v. Craddock, 174 N. C., 276; Thompson v. Rospigliosi, 162 N. C., 147; Vaughan v. Gooch, 92 N. C., 529; Wood v. Parker, 63 N. C., 379. We have considered all tbe exceptions and have concluded, upon the whole record, that the defendant cannot claim the relief sought as a matter of legal right. The judgment is therefore Affirmed.