State v. Abney

339 S.E.2d 841, 79 N.C. App. 649, 1986 N.C. App. LEXIS 2094

• Court: Court of Appeals of North Carolina
• Decided: March 4, 1986
• Docket: No. 8526SC881
• Status: Published

Opinions

JOHNSON, Judge.

By its first Assignment of Error the State contends that the order signed by Judge Snepp on 12 March 1985 is null and void because it was entered out of session without agreement of the parties.

We take judicial notice that Judge Snepp was assigned to hold the 25 February 1985 Schedule D Mixed term of Superior Court, Mecklenburg County. This term of court was scheduled for one week and was not extended. Court was adjourned on 28 February after this case was heard. The order in question was entered 12 March 1985, twelve days after adjournment of the term in which the motion was heard.

In State v. Boone, 310 N.C. 284, 311 S.E. 2d 552 (1984), the Court stated that:

[Judgments and orders substantially affecting the rights of parties to a cause pending in the Superior Court at a term must be made in the county and at the term when and where the question is presented, and our decisions on the subject are to the effect that, except by -agreement of the parties or by reason of some express provision of law, they cannot be entered otherwise, and assuredly not in another district and without notice to the parties interested.

Boone, at 287, 311 S.E. 2d at 555 (quoting State v. Humphrey, 186 N.C. 533, 535, 120 S.E. 85, 87 (1923)) (emphasis ours).

Defendant argues that since neither party objected to Judge Snepp’s failure to render a decision during the term, “the trial court reasonably interpreted the silence as consent by both parties to a delay in the decision,” even to the extent of rendering the decision out of term.

But for this Court’s recent holding in State v. Reid, 76 N.C. App. 668, 334 S.E. 2d 235 (1985), we believe that the parties’ silence and passive conduct, to wit: failing to request the judge to render a decision during the term or failing to object to the judge’s failure to render a decision before adjourning court could reasonably be interpreted as implied consent and agreement for Judge Snepp to take such time as he found appropriate in considering the matter and rendering his decision, even out of term. This is particularly so in light of (a) the judge’s statement and (b) knowledge of the parties of their right to have the judge render his decision during the term unless otherwise agreed to by the parties.

In that we are bound to follow the holding in Reid, supra, we are compelled to vacate the order in question and remand the case. In Reid the trial judge, after conducting a hearing, stated, “I’m going to take this matter under advisement. We’re going to be in recess —we’re going to be adjourned.” Id. at 669, 334 S.E. 2d at 235. Neither party objected to the judge’s failure to render a decision before adjourning court. This Court held that the parties’ failure to object did not constitute implied consent to the order being entered out of term. Reid, supra.

The order entered 12 March 1985, twelve days after the term of Superior Court when the matter was scheduled and heard, is null and void. The order is vacated and the cause is remanded to Superior Court, Mecklenburg County, for a new hearing on defendant’s petition filed 28 February 1985.

In holding that the order is null and void, we do not reach the State’s remaining Assignment of Error.

Vacated and remanded.

Chief Judge Hedrick concurs. Judge Phillips dissents.