In re the Foreclosure of a Deed of Trust

Court of Appeals of North Carolina

In re the Foreclosure of a Deed of Trust

376 S.E.2d 250, 93 N.C. App. 86, 1989 N.C. App. LEXIS 73

CourtCourt of Appeals of North Carolina

DecidedFebruary 21, 1989

DocketNo. 8829SC533

StatusPublished

This text of 376 S.E.2d 250 (In re the Foreclosure of a Deed of Trust) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Foreclosure of a Deed of Trust, 376 S.E.2d 250, 93 N.C. App. 86, 1989 N.C. App. LEXIS 73 (N.C. Ct. App. 1989).

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Opinion

ORR, Judge.

Petitioner argues on appeal that Judge Hyatt lacked jurisdiction to sign the order in question. We agree.

As we have stated above, the Chief District Court Judge has the statutory authority to assign cases to Superior Court judges. See G.S. 7A-146. A decision to reassign a case to the original trial judge is clearly judicially expedient. Yet, the Chief District [88]*88Judge has no obligation to do so. Therefore, the original judge does not have authority over a particular case on remand unless the judge is in session in the proper county, and the case is reassigned to that judge. Judge Hyatt, therefore, did not maintain jurisdiction over the case on remand simply because she was the original trial court judge.

The period of consent is critical because Judge Hyatt’s term ended on 11 September 1987. A judgment or order entered after that time could only be valid if there was consent between the parties to that effect. State v. Boone, 310 N.C. 284, 287, 311 S.E. 2d 552, 555 (1984). G.S. 7A-47 makes clear that a non-resident superior court judge has the “same powers in the district in open court and in chambers as the resident judge . . . and his jurisdiction in chambers shall extend until the session is adjourned . . . .”

Boone clearly states the necessity of consent by the parties if an order is to be signed by a judge whose term has expired. State v. Boone, 310 N.C. at 287, 311 S.E. 2d at 555. In the case sub judice, consent was given for ten days. However, that period had long expired by the time the Order was entered. For that reason, we find the Order was void, and the case must be remanded for the necessary findings of fact and the signing of an order during a duly designated term of court.

Based on this holding, we do not reach the petitioner’s remaining assignments of error which refer to the trial court’s findings and the sufficiency of the evidence to support those findings.

Remanded.

Chief Judge Hedrick and Judge Arnold concur.

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ORR, Judge.

Petitioner argues on appeal that Judge Hyatt lacked jurisdiction to sign the order in question. We agree.

As we have stated above, the Chief District Court Judge has the statutory authority to assign cases to Superior Court judges. See G.S. 7A-146. A decision to reassign a case to the original trial judge is clearly judicially expedient. Yet, the Chief District [88]*88Judge has no obligation to do so. Therefore, the original judge does not have authority over a particular case on remand unless the judge is in session in the proper county, and the case is reassigned to that judge. Judge Hyatt, therefore, did not maintain jurisdiction over the case on remand simply because she was the original trial court judge.

The period of consent is critical because Judge Hyatt’s term ended on 11 September 1987. A judgment or order entered after that time could only be valid if there was consent between the parties to that effect. State v. Boone, 310 N.C. 284, 287, 311 S.E. 2d 552, 555 (1984). G.S. 7A-47 makes clear that a non-resident superior court judge has the “same powers in the district in open court and in chambers as the resident judge . . . and his jurisdiction in chambers shall extend until the session is adjourned . . . .”

Boone clearly states the necessity of consent by the parties if an order is to be signed by a judge whose term has expired. State v. Boone, 310 N.C. at 287, 311 S.E. 2d at 555. In the case sub judice, consent was given for ten days. However, that period had long expired by the time the Order was entered. For that reason, we find the Order was void, and the case must be remanded for the necessary findings of fact and the signing of an order during a duly designated term of court.

Based on this holding, we do not reach the petitioner’s remaining assignments of error which refer to the trial court’s findings and the sufficiency of the evidence to support those findings.

Remanded.

Chief Judge Hedrick and Judge Arnold concur.

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Bluebook (online)

376 S.E.2d 250, 93 N.C. App. 86, 1989 N.C. App. LEXIS 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-foreclosure-of-a-deed-of-trust-ncctapp-1989.

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