Harriss v. . Hughes

OlaeksoN, J. Tbe plaintiff contends tbat tbe question presented is: “Under tbe Statutes of North Carolina, was tbe Judge vested with jurisdiction to bear this matter when not calendared for bearing at tbe July Criminal Term, 1941, of tbe Superior Court of New Hanover County?” We think so, under tbe facts and circumstances of this action. Tbe second assignment of error challenges tbe correctness of tbe ruling of tbe court in changing a consent decree, without first obtaining tbe consent of all interested parties thereto, and without its being done at a regular term when tbe case was calendared. Neither of these contentions can be sustained. Tbe original consent judgment, when tbe case was in tbe Superior Court, required tbe clerk to do certain things, but it went further and stated: “It is further Ordered, Adjudged and Decreed by tbe Court, by consent, tbat this cause is retained only for such other and further orders *478 as tbe Court may determine should be made relative to a re-sale by tbe Commissioner and tbe confirmation of tbe sale by tbe Clerk.” In tbe opinion of tbe commissioner, after reciting tbe facts in bis report, it is said: “Tbe ends of justice will best be preserved by a re-sale of said land and premises, and your Commissioner so recommends.” Upon tbis report, tbe clerk ordered tbe property to be readvertised and sold, “tbe sale heretofore made by tbe Commissioner, be not confirmed.” N. 0. Code, 1939 (Micbie), sec. 598, in part, is as follows: “Sales made by receivers or commissioners appointed by tbe superior court, unless governed by tbe provisions of Consolidated Statutes, section two thousand five hundred and ninety-one, as amended, may after ten days from tbe date of sale, in tbe absence of objection or raise in bid, be confirmed, or in case of objection or raise in bid, re-sales may be ordered, without notice, in chambers in any county in tbe judicial district, in which tbe proceedings are pending, by tbe resident judge or tbe judge bolding tbe courts of said district; but tbis shall not diminish tbe power of tbe court in term time to act in such matters as now provided by law where no order has been made under tbis section.” Section 637: “Whenever a civil action or special proceeding begun before tbe clerk of a superior court is for any ground whatever sent to tbe superior court before tbe judge, tbe judge has jurisdiction; and it is bis duty, upon tbe request of either party, to proceed to bear and determine all matters in controversy in such action, unless it appears to him that justice would be more cheaply and speedily administered by sending tbe action back to be proceeded in before tbe Clerk, in which case be may do so.” Hall v. Artis, 186 N. C., 105; Wynne v. Conrad, ante, 355. We think that tbe consent decree, liberally construed, gives tbe court supervisory power in tbe matter. In Hales v. Land Exchange, 219 N. C., 651 (651-2), it is written: “Tbe consent judgment, in so far as it pertained to tbe sale of tbe land, was an interlocutory order in the cause, and has validity because of tbe approval of tbe judge, and was subject to modification by tbe judge like any other such order, provided it did not infringe upon tbe rights of tbe parties. See Fowler v. Winders, 185 N. C., 105, 116 S. E., 177. Compare Coburn v. Comrs., 191 N. C., 68, 131 S. E., 372. No encroachment upon rights of parties appears.” In Coburn v. Comrs., supra, it is held: When a consent judgment reserves tbe cause for further orders, tbe court may thereafter modify tbe order or judgment as conditions be made to appear, to make such change or modification in conformity with justice and tbe legal rights of tbe parties. Tbe appealing plaintiff says that be was not given proper notice. We think the facts set forth in tbe order or judgment of tbe court below *479 showed a waiver. The consent decree says that the commissioner (George H. Howell) “Shall advertise the same at the Court House door and three other public places in the County of New Hanover for thirty days prior to the date of sale and for once a week for four successive weeks in a newspaper published in the City of Wilmington,” etc. The order or judgment appealed from says: “The Commissioner stated to the Court, in open Court, that at the time his name was put in the consent judgment as Commissioner he had no knowledge that same was being done; that he is related to the plaintiff and that he feels embarrassed by reason of such relationship in acting as Commissioner, and would like to be relieved of further duties in the matter.” On this statement, the court below relieved Mr. Howell of further duty in the matter, “And in his place and stead Joseph W. Ruark and E. J. Prevatte are hereby appointed as Commissioners to make said re-sale, they being found by the Court to be fit and competent Commissioners for said purpose.” The order only requires publication once a week for two weeks in a newspaper. We think it should give thirty days, etc., as required in the consent decree and four successive weeks in the newspaper. For the reasons given, the judgment in the court below is Modified and affirmed.