East Coast Fertilizer Co. v. Hardee

188 S.E. 623, 211 N.C. 56, 1936 N.C. LEXIS 402

• Court: Supreme Court of North Carolina
• Decided: December 16, 1936
• Status: Published

Opinion

DeviN, J.

The only question presented by this appeal is the validity of the order of Judge Parker denying plaintiff’s motion for jury trial upon an issue in the cause, wbicb, by the judgment of Judge Frizzelle, bad been ordered retained on the civil issue docket for tbat purpose.

While the reference ordered by Frizzelle, J., in the first instance, was by consent, it may be open to debate whether the order to the referee to “bear the testimony, render an accounting, and report bis findings” contemplated the consideration and decision by him of the issue of fraudulent conversion raised by the pleadings. But, however that may be, the judgment of Judge Frizzelle, at April Term, 1935, confirming the report of the referee, definitely ordered that the issue of fraud arising on the pleadings be retained on the civil issue docket for jury trial at a subsequent term; and, even if this portion of the judgment was erroneous, no exception was noted thereto nor appeal taken. The judgment, was not void. It could not be treated as a nullity. It could not be set aside as erroneous at a subsequent term by another judge.

In Edwards v. Perry, 206 N. C., 474, a similar question was so. decided by this Court. In that case there was an order of reference by consent. At a later term an order was made by Judge Harris, by consent, that certain issues be submitted to a jury. Subsequently, at another term, by order of Judge Barnhill, then presiding, the order of Judge Harris was disregarded on the ground that a jury trial was not in order, as the original reference was by consent and both parties bad waived their rights to a jury trial. This was held to be error.

The decision in Edwards v. Perry, supra, is determinative of the question here. It is well settled that a decision of one judge of the Superior Court is not reviewable by another judge. Since the power of one judge is equal to and coordinate with that of another, a judge bolding a succeeding term of the Superior Court has no power to review or disregard a judgment rendered at a former term affecting substantial rights upon the ground that such judgment is erroneous. Wellons v. Lassiter, 200 N. C., 474; Caldwell v. Caldwell, 189 N. C., 805; Dockery v. Fairbanks, 172 N. C., 529; Bland v. Faulkner, 194 N. C., 427; Rutherford College v. Payne, 209 N. C., 792.

A judgment of the Superior Court, rendered in term by the judge, can be reviewed for error only upon appeal to the Supreme Court upon exceptions duly noted. S. v. Lea, 203 N. C., 316; Power Co. v. Peacock, 197 N. C., 735; Phillips v. Ray, 190 N. C., 152; Live Stock Co. v. Atkinson, 189 N. C., 250; May v. Lumber Co., 119 N. C., 96; Roulhac v. Brown, 87 N. C., 1.

The judgment of Judge Frizzelle at April Term, 1935, not having-been excepted to or appealed from, became res judicata. To sustain the order of Judge Parker at April Term, 1936, would result in inconsistent adjudications on the same subject matter, which this Court has consistently sought to prevent by the enforcement of the rule herein stated. S. v. Evans, 74 N. C., 324; Wilson v. Lineberger, 82 N. C., 412; Scroggs v. Stevenson, 100 N. C., 354; Cobb v. Rhea, 137 N. C., 295; Broadhurst v. Drainage Comrs., 195 N. C., 439; Power Co. v. Peacock, supra; Revis v. Ramsey, 202 N. C., 815; Myers v. Causeway Co., 204 N. C., 260.

We conclude that tbe learned judge was in error in denying plaintiff’s motion for trial by jury of tbe issue of fraud arising on tbe pleadings, as required by tbe judgment in tbe cause rendered at a previous term of tbe court.

Reversed.