Thompson v. Gennett

122 S.E.2d 205 (1961) 255 N.C. 574

J. Mack THOMPSON
v.
Andrew GENNETT, N. C. W. Gennett, Jr., and Julia G. Lambeth, Partners, doing business as Gennett Lumber Company and as Gennett Oak Flooring Company, and Gennett Oak Flooring Company, Inc.

No. 307.

Supreme Court of North Carolina.

November 1, 1961.

Anglin & Bailey, Burnsville, for plaintiff, appellant.

Elmore & Martin, Asheville, for defendants, appellees.

PER 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.

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.

Ordered vacated.