Clark v. Saco-Pettee MacHine Co.

Brown, J. We think the exception to the ruling of bis Honor at August Term, 1908, refusing to open the case and permit answers to be filed traversing certain allegations of the com *375 plaint, and praying for affirmative relief, cannot be sustained. It was witbin the sound discretion of the judge below to open the case at tbat late day and set aside the sale and allow the answers to be filed, but bis discretion was exercised against the defendants and is not reviewable by us, certainly not when there is no evidence tbat sucb discretionary power bas been abused. Tbe parties, having slept on their legal rights, forfeited them; and as they failed to convince tbe judge below tbat be should exercise bis discretion in their behalf, this Court cannot help them. Tbe matter, we think, was practically disposed of .by us at tbe last term (ante, §8), when we held tbat tbe answers, having been filed in tbe papers in tbe case without authority of tbe court, and long after time for pleading bad expired, were properly ordered to be stricken from tbe official records. It is contended by the defendants, in excepting to the decree of confirmation, tbat bis Honor bad no jurisdiction to render sucb decree after the term bad expired, and outside of the county of Lee. We would have no hesitation in bolding with the defendants but for the finding by the judge tbat all parties consented tbat the matter should be beard and determined while the judge was in the district, in Union County, and, the parties being unable to reach Union Court, by consent the matter was beard at Richmond Court and the decree of confirmation was then rendered. It is well settled tbat by consent of parties a judge of the Superior Court may bear sucb motions and enter judgments out of term and in another county than the one wherein the cause is pending. Bank v. Peregoy, 147 N. C., 296; Bynum v. Powe, 97 N. C., 374; Godwin v. Monds, 101 N. C., 354. It is further contended tbat tbe court should have ordered another sale, as tbe original decree was rendered by J ones, J., in Richmond County, at chambers, and tbat sucb decree was void, ab initio. It is possible tbat tbe decree of 8 April, rendered outside of tbe county of Moore, where tbe cause was then pending, was of sucb a sweeping character as to constitute something more than a mere direction to a receiver to sell property, and tbat under Bank v. Peregoy, supra, tbe judge bad no jurisdiction to render it at chambers in Richmond County, except *376 upon a consent bearing. But tbis decree was ratified • and adopted by tbe court in term time, in April, and again in May, in Moore County, before tbe cause was removed to Lee County. At tbe May Term tbe defendants bad been brought in and bad been made parties and were before tbe court, and took no 'exception to tbe decree tben rendered.. Tbis decree undertakes to .ratify and affirm tbe decree of 8 April, 1908, and also tbe detíree of April Term, not only as to tbe order of sale contained in tbe decree, but declares tbat said decrees “are in all things confirmed.” Having full and complete jurisdiction at May Term over all tbe parties, as well as tbe subject-matter of tbe action, Judge Jones adopted and again promulgated tbe decree be bad formally made in Richmond County. Tbis tbe judge bad tbe right to do, and tbe legal effect is tbe same as if be bad rewritten and again signed and entered tbe Richmond decree in iisdem terminis. No answers were filed at tbat time, no issues raised, and there was no reason why tbe decree should not have tben been rendered. In tbis view of tbe case it is immaterial to consider whether tbe Richmond decree, of 8 April, was absolutely void or only voidable. It was in writing and spread on the minutes-of the court, and tbe decree of May Term gave it vitality by reference to it, as much so as if it bad been copied in tbe May decree. "Id cerium est quod cerium reddi potest J This conclusion, at which we have arrived after a full investigation of tbe record, we think disposes of every assignment of error. Tbe judgment of tbe Superior Court rendered by bis Honor, Judge Long, is Affirmed.