Thompson v. Gennett

Supreme Court of North Carolina

Thompson v. Gennett

122 S.E.2d 205, 255 N.C. 574, 1961 N.C. LEXIS 641

CourtSupreme Court of North Carolina

DecidedNovember 1, 1961

Docket307

StatusPublished

Cited by3 cases

This text of 122 S.E.2d 205 (Thompson v. Gennett) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Thompson v. Gennett, 122 S.E.2d 205, 255 N.C. 574, 1961 N.C. LEXIS 641 (N.C. 1961).

Pincite

Opinion

Pbb Curiam.

This cause was properly instituted in Yancey County. At said March 6th Term it was for hearing in the superior court upon exceptions to the report (dated January 25, 1961) of a referee. Contracts .and transactions with reference to lumber operations in Yancey County are the subject of controversy. Both plaintiff and defendants had. .excepted to the order of reference; and, in filing exceptions to the referee’s report, had tendered issues and demanded a jury trial thereon.

On March 6th, Judge McLean did not, by the announcement then made, purport to transfer the cause to any designated county or to any designated adjoining judicial district. Rather, he indicated he would sign, during the term, a specific order of transfer. He did not do so. Nor. did plaintiff consent that such an order might be signed after adjournment of the term.

No order, oral or written, purporting to transfer the cause from Yancey County to Buncombe County was made until Judge McLean signed, in Asheville, N. C., the order of April 22, 1961. This order was made and signed (1) after adjournment of the March 6th Term, (2) outside the county, (3) outside the district, and (4) without notice to or consent of plaintiff or his counsel.

*576 The order signed April 22, 1961, was made “in the discretion of the Court and on the Court’s own motion.”

The order of April 22,1961, was signed as follows: “W. K. McLEAN, Judge Presiding, March 6, 1961, Term, Yancey County Superior Court.” Absent consent, the judicial authority vested in Judge McLean as Presiding Judge at said March 6th Term terminated upon adjournment thereof. Hence, Judge McLean lacked judicial authority to enter said order of April 22, 1961. Accordingly, the order of April 22, 1961, must be and is vacated. In view of this conclusion, the validity of the purported order of transfer, if it had been entered during the March 6th Term, need not be considered.

Order vacated.

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Pbb Curiam.

This cause was properly instituted in Yancey County. At said March 6th Term it was for hearing in the superior court upon exceptions to the report (dated January 25, 1961) of a referee. Contracts .and transactions with reference to lumber operations in Yancey County are the subject of controversy. Both plaintiff and defendants had. .excepted to the order of reference; and, in filing exceptions to the referee’s report, had tendered issues and demanded a jury trial thereon.

On March 6th, Judge McLean did not, by the announcement then made, purport to transfer the cause to any designated county or to any designated adjoining judicial district. Rather, he indicated he would sign, during the term, a specific order of transfer. He did not do so. Nor. did plaintiff consent that such an order might be signed after adjournment of the term.

No order, oral or written, purporting to transfer the cause from Yancey County to Buncombe County was made until Judge McLean signed, in Asheville, N. C., the order of April 22, 1961. This order was made and signed (1) after adjournment of the March 6th Term, (2) outside the county, (3) outside the district, and (4) without notice to or consent of plaintiff or his counsel.

*576 The order signed April 22, 1961, was made “in the discretion of the Court and on the Court’s own motion.”

The order of April 22,1961, was signed as follows: “W. K. McLEAN, Judge Presiding, March 6, 1961, Term, Yancey County Superior Court.” Absent consent, the judicial authority vested in Judge McLean as Presiding Judge at said March 6th Term terminated upon adjournment thereof. Hence, Judge McLean lacked judicial authority to enter said order of April 22, 1961. Accordingly, the order of April 22, 1961, must be and is vacated. In view of this conclusion, the validity of the purported order of transfer, if it had been entered during the March 6th Term, need not be considered.

Order vacated.

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Bluebook (online)

122 S.E.2d 205, 255 N.C. 574, 1961 N.C. LEXIS 641, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-gennett-nc-1961.

Opinion

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