Killian v. Maiden Chair Co.

*28 Brogdekt, J. Tbe questions of law presented by the appeal are : 1. Has a Superior Court judge power to make an order in receivership proceedings outside of the county of the judicial district in'which the cause is pending? 2. Has a Superior Court judge power to iiermit a party to withdraw a petition in a receivership proceeding? The plaintiff contends that the order made in this cause on 1 September, 1931, was invalid by reason of the fact that the judge entered the order out of the judicial district in which the action was pending and out of the county in which the suit had originally been instituted. This contention, however, must be interpreted in the light of the facts found by the judge at the time the order was entered. He finds as a fact that the motions and exceptions were submitted to him in Wilkesboro on 12 August, 1931, “by consent of the parties.” He further finds as a fact that the judgment rendered at Mocksville on 1 September, 1931, was upon the agreement of all parties “that the court should enter its final order on said motions, at said time and place.” Ordinarily a judgment cannot be entered out of term and out of the district unless such judgment falls within that class of decrees which may be made nunc pro iunc. However, this principle does not apply where the parties are present in court either in person or by attorney and consent that a hearing may be had and a judgment rendered. This idea was thus expressed in Hemphill v. Moore, 104 N. C., 379, 10 S. E., 313: “It is in case of motions and proceedings in an action out of term-time that a special notice to the adverse party must generally be given. But, in such cases, if the opposing party should appear, by himself or his counsel, he would, ordinarily, have been deemed to have taken actual notice and to have waived formal notice.” Indeed, in Bisanar v. Suttlemyre, 193 N. C., 711, 138 S. E., 1, express sanction was given to a judgment signed by an emergency judge out of term and out of district when it appeared that all the parties had fully consented to such procedure. In order to avoid misunderstanding between counsel for opposing parties, it is perhaps advisable that such consent should be given in writing. Nevertheless, a writing is not essential to the validity of the judgment or order in the absence of a denial that consent was given. Moreover, when the judge finds as a fact that consent was actually given, whether in writing or not, and this finding is set out in the judgment, it is binding upon the parties in the absence of fraud or collusion. Westhall v. Hoyle, 141 N. C., 337, 53 S. E., 863; Henry v. Hilliard, 120 N. C., 479, 27 S. E., 130. The second question of law becomes immaterial upon the facts found by the judge and set forth in the order for the reason that the judge *29 in bis discretion declined to permit tbe plaintiff to file exceptions or to set np a plea attacking tbe validity of tbe contract between tbe defendant and tbe Storage Company. Hence there was nothing before tbe court in tbe nature of a counterclaim, or equity, which tbe plaintiff bad a right to have determined in tbe action. Tbe judge found as a fact that tbe plaintiff bad full notice of all tbe orders in tbe receivership proceedings and bad fully consented to such orders, and that tbe larger portion of tbe fund which was tbe subject of tbe controversy, bad been disbursed by tbe receiver under proper order of tbe court. A party is not permitted to withdraw or take a nonsuit or bow himself out of court when bis adversary has set up a counterclaim or claim of an equitable nature involving rights which have attached and which be is entitled to have determined in tbe action. But this principle is not applicable to tbe facts appearing in tbe record. R. R. v. R. R., 148 N. C., 59, 61 S. E., 683. A further contention is made to tbe effect that when tbe judge permitted tbe Storage Company to withdraw its petition upon the understanding that said Storage Company would abandon any and all claim tó tbe sum of $2,821.35 in tbe bands of tbe receiver that such judgment was a conditional judgment and prohibited by law. McIntosh on North Carolina Practice and Procedure, page 731, writes: “A conditional judgment is one whose force depends upon tbe performance or nonperformance of certain acts to be done in tbe future-by one of .the parties, as where a judgment was given, for tbe plaintiff, to be stricken out if tbe defendant filed a bond within a certain time, and this was held to be void. But where tbe judgment is definite and certain, and a condition is added which may operate to carry tbe judgment into effect, it is not conditional; as in a judgment for foreclosure tbe property is to be sold if tbe judgment is not paid within a certain time, or that tbe judgment may be satisfied by giving secured notes by a certain time. Where tbe parties agree that a certain judgment may be entered upon failure to comply with a certain condition, and it is so entered- after failure, it is not a conditional judgment.” 'The judgment in tbe case at bar contemplated no future act to be performed by any of tbe parties. It waived its claim to tbe fund in open court and was thereupon permitted to withdraw, leaving tbe fund to tbe exclusive control of tbe court. Affirmed.