Dellinger v. Clark , 234 N.C. 419 ( 1951 )

67 S.E.2d 448 (1951) 234 N.C. 419

DELLINGER
v.
CLARK et ux.

No. 314.

Supreme Court of North Carolina.

November 7, 1951.

Horton & Carter, and Russell Berry, all of Morganton, for defendants, appellants.

Mull, Patton & Craven, Morganton, for plaintiff, appellee.

JOHNSON, Justice.

It is settled law in this jurisdiction that after a term of Superior Court has ended, the presiding judge may not vacate a judgment entered during the term, or substitute another therefor, except in conformity with a proper proceeding brought for that purpose. Bisanar v. Suttlemyre, 193 N.C. 711, 138 S.E. 1; Dunn v. Taylor, 187 N.C. 385, 121 S.E. 659; Ramsour v. Raper, 29 N.C. 346. Nor may a judge of the Superior Court render judgment outside of the county in which the action is pending, unless authorized to do so by statute, or by consent of the parties. Patterson v. Patterson, 230 N.C. 481, 53 S.E.2d 658; Gaster v. Thomas, 188 N.C. 346, 124 S.E. 609; Brown v. Mitchell, 207 N.C. 132, 176 S.E. 258. And where consent is relied upon as authority to sustain a judgment entered outside of the county, the facts in respect to the consent must appear on the face of the record. Jeffreys v. Jeffreys, 213 N.C. 531, 197 S.E. 8.

Here, it is conceded that the trial judge had no statutory authority to render judgment out of the county. But it does appear on the record that it was stipulated and agreed "that the Court might sign the Findings of Fact and Judgment out of the County, and out of Term, and mail same back." Where this appears, the judge's authority to enter judgment is coextensive with the consent conferred. Gaster v. Thomas, supra (188 N.C. 346, 124 S.E. 609); Pate v. Pate, 201 N.C. 402, 160 S.E. 450.

The defendants contend that the foregoing stipulation is insufficient to support the findings and judgment entered by the court. They point to these facts disclosed by the record: (1) that the judge before leaving the bench announced his intention to render judgment finding and adjudicating that the defendants had acquired by adverse possession two corners of the land in controversy, with the rest being owned by the plaintiff; (2) that the judge went with the parties and their attorneys upon the land and pointed out to the surveyor these two areas and had them actually surveyed out and marked in the court's presence; (3) that on returning to the courtroom the judge then dictated to the court stenographer his intended findings of fact and judgment in accordance with his previous announcement, with direction that the stenographer mail transcript of the dictation to him at Reidsville; (4) in concluding the dictation, the judge indicated that the defendants would be taxed with the costs; (5) that on objection by counsel for the defendants, the judge reconsidered his announcement as to costs, and requested counsel on both sides to submit briefs upon the question of costs; (6) that the plaintiff gave notice of his intention to appeal to the Supreme Court, and the judge dictated into the record his appeal entries.

The defendants urge that these facts appearing of record, it follows as a matter of law therefrom that the judge rendered judgment on all issuable matters before the term of court expired; that therefore nothing remained in fieri except the matter of costs. Thus, the defendants reason that when the judge left the bench, his authority over the case was expended, except as to taxing the costs and performing the ministerial act of signing the findings of fact and judgment as previously dictated to the court stenographer. (Brown v. Harding, 170 N.C. 253, at page 261, 86 S.E. 1010; Belcher v. Cobb, 169 N.C. 689, 86 S.E. 600). Accordingly, the defendants insist that the judgment later signed by the judge, in Reidsville, substantially modifying his previously announced findings and decision, is a nullity for want of jurisdiction.

But the stipulation authorizing the court to sign the findings of fact and judgment out of term and out of the county goes beyond the limits conceded by the defendants. The stipulation does not limit the court to any specific decision, announced or unannounced; nor does it relate to any specific phase or phases of the case. In fact, the record indicates that the stipulation was dictated into the record by the presiding judge after counsel for the defendants had suggested without qualification "that the Court take the case out of the District and render judgment and verdict."

The record on appeal imports verity, and this Court is bound by what it contains. Southerland v. Crump, 199 N.C. 111, 153 S.E. 845; Tomlinson v. Cranor, 209 N.C. 688, 184 S.E. 554.

The court below had the power to consider and inquire into the facts in respect to, and determine, subject to review, the question of its jurisdiction. Jones v. Standard Oil Co., 202 N.C. 328, 162 S.E. 741; 21 C.J.S., Courts, § 113. And the court having acted in the matter, every presumption not inconsistent with the record will be indulged in favor of jurisdiction. McKellar v. McKay, 156 N.C. 283, 72 S.E. 375; 21 C.J.S., Courts, § 96. See also Henderson County v. Johnson, 230 N. C. 723, 55 S.E.2d 502; Williamson v. Spivey, 224 N.C. 311, 30 S.E.2d 46; Graham v. Floyd, 214 N.C. 77, 197 S.E. 873. The burden is on the party asserting want of jurisdiction to show such want. 21 C.J.S., Courts, § 96, page 149.

It appears that the trial court interpreted the stipulation as holding in fieri the decision in toto until the final findings and judgment should be signed. Upon this record the contrary has not been made to appear. Therefore, the trial and judgment below will be upheld.

No error.

ERVIN, J., took no part in the consideration or decision of this case.