Atlantic National Bank v. Peregoy-Jenkins Co.

Walker, J. It cannot be material in' tbis case that tbe motion is made by Mr. Bellamy as attorney in bebalf of Cbarles S. Reilly & Co., if in making tbe motion he is also representing bis client, tbe Peregoy-Jenkins Lumber Company, which is a party to tbe record. His right to move in tbe cause is derived from tbe original authority which was given by the defendant, tbe Peregoy-Jenkins Lumber Company, to appear for it generally in tbe proceeding, and tbis authority was not terminated by tbe order of sale which tbe court made. If tbe Peregoy-Jenkins Lmnber Company could move to set aside tbe order allowing tbe receiver to sell tbe timber to R. G. Grady because it was void, it would seem to follow that its attorney of record, acting in its bebalf, could do tbe same thing, unless bis authority bad been revoked, and there is no finding of fact in tbis case to' tbe effect that it bad been. So far as appears, therefore, he still had tbe authority to make the motion. Rogers v. McKensie, 81 N. C., 164; Branch v. Walker, 92 N. C., 87; Allison v. Whittier, 101 N. C., 490; *296 Ladd v. Teague, 126 N. C., 544. The order 'of the court for the sale of the property to R. G. Grady provides that the Peregoy-Jenkins Lumber Company and all-the creditors of the said company shall be forever excluded from any right, interest or title therein, and it is found as a fact that the order was made without any notice to’ the parties to be thus affected by it. The motion for the order of sale and the order itself were made out of the county in which the case was pending. The motion was one in the cause, as distinguished from a motion for an ancillary remedy, such as an application for an injunction, receiver, etc., and should have been made in the county where the cause was then pending. The order disposed of a part of the assets in the possession of the receiver and affected a substantial right and interest of the parties to the action. In McNeill v. Hodges, 99 N. C., 248, the Court said that “Regularly an action must be conducted, tried and disposed of, not only in the court, but as well in the county where it is pending. The several statutes prescribing and regulating the jurisdiction of the courts, the method of procedure and practice so in effect provide, except in particular cases and respects specially provided for, such as the granting of-injunctions pending the action until the hearing upon the merits, the appointment of receivers and the like. Bynum v. Powe, 97 N. C., 374.” It was therefore held that, except by consent or in those cases for which special provision is made by the statute, a Judge of the Superior Court, even in his own district, has no jurisdiction to hear a cause or make orders therein outside the county in which the action is pending. If consent has been given by the parties it should so appear in the record. Godwin v. Monds, 101 N. C., 354. This case differs from Parker v. McPhail, 112 N. C., 502, for in that case the Judge acquired jurisdiction as incident to the original power he had to grant the order of arrest outside the county where the action was pending, and, by virtue of The Code, sec. 594 (6), as stated by the present *297 Obief Justice, and Fertilizer Co. v. Taylor, 112 N. C., 141, differs from our case in the fact that the Judge was in that case merely'enforcing obedience to his own order requiring the defendant to submit to an examination in supplementary proceedings. The jurisdiction to order the examination of a party implied the power to enforce the order by attachment for contempt. In both cases the necessity for conceding such jurisdiction to exist under the statute was considered as arising out of the urgency of the case and the nature of the relief demanded, requiring the remedy to be speedy in order to be effectual. But not so in our case. There was no reason why the Judge should act at once here in a county other than the one where the cause was pending. Besides, as we have said, the order affected the corpus of the assets in the hands of the receiver, and the motion was, in legal contemplation, one made in the principal cause. It was not for those reasons merely ancillary in its nature. In-the case of Brown v. Railway, 83 N. C., 128, this Court held that a Superior Court of one county should not interfere with property in the hands of a receiver appointed by the Superior Court of another county, although the property is in the former county, but that relief should be sought in the county where the receiver was appointed. While that case is not directly in point, it furnishes a clear-analogy for our guidance and assigns a good reason why motions of this kind should be made in the county where the principal cause is pending. Our conclusion is that the Judge had no power to order the sale to be made, and there was consequently error in the refusal to vacate the order and to set aside the deed made to the purchaser. It must be understood that we are reversing the order of the court solely upon the ground that the original order, which was made outside the county of New Hanover, where the case was then pending, disposed of a part of the assets in the possession of the receiver. In such case the order is final as to the property disposed of, the title to which *298 passes thereby, and such order should therefore be made in the county and at the form of court. It is otherwise as to orders to advertise property for sale, which are mere directions from the court to the receiver in the management of the property and which may be made by the Judge anywhere in the district. The advertisement, the public sale and the requirement that the final order confirming the sale (with opportunity of raising the bid) must be made at term and in the county safeguard the rights of all parties. Besides, an order to advertise for sale can be modified or set aside, on motion, before the sale takes place, for good cause shown. Reversed.