Union National Bank v. Hagaman

179 S.E. 759, 208 N.C. 191, 1935 N.C. LEXIS 355

• Court: Supreme Court of North Carolina
• Decided: May 1, 1935
• Status: Published

Opinion

CoNNOR, J.

Tbe motion of tbe defendants for an order requiring tbe plaintiffs to show cause wby tbe judgment rendered in tbis proceeding at tbe December Term, 1934, of tbe Superior Court of Caldwell County should not be set aside or modified, should have been in writing, and should have been supported by an affidavit, stating tbe grounds of tbe motion. Tbe plaintiffs would thus have been apprised before tbe bearing of tbe grounds of tbe motion. Tbe failure of tbe defendants, however, to put their motion in writing or to file an affidavit stating tbe grounds of their motion, at tbe time tbe motion was made before Judge Harding at Morganton, was not sufficient to entitle tbe plaintiffs to the dismissal of tbe motion of tbe defendants as a matter of right. If tbe plaintiffs bad requested Judge Harding at tbe bearing to require tbe defendants to reduce their motion to writing, or to file an affidavit stating tbe grounds of their motion, be would doubtless have so ordered, and allowed plaintiffs time to answer, if they bad so requested. There was no error in tbe refusal of Judge Harding to dismiss tbe motion of tbe defendants on tbe ground that same was not in writing or supported by an affidavit.

Judge Harding, however, was without authority to bear tbe motion, or to make tbe order from which tbe plaintiffs have appealed, at bis Chambers in tbe city of Charlotte.

In Bisanar v. Suttlemyre, 193 N. C., 711, 138 S. E., 1, it is said: “It is tbe uniform bolding in tbis jurisdiction that, except by consent, or unless authorized by statute, a judge of tbe Superior Court, even in bis own district, has no authority to bear a cause or to make an order substantially affecting tbe rights of tbe parties, outside tbe county in which tbe action is pending.” See cases cited.

If tbe facts with respect to tbe signing of tbe judgment at tbe December Term, 1934, of tbe Superior Court of Caldwell County are as tbe defendants contend, they are not without a remedy. See 0. S., 600. Tbe order signed by Judge Harding at bis Chambers in tbe city of Charlotte must be set aside and vacated, for tbe reason that said order was signed outside Caldwell County, and affects substantial rights of tbe plaintiffs in tbis proceeding, which is pending in tbe Superior Court of skid county.

Error.