Conestee Chemical Co. v. Long, 184 N.C. 398 (1922)

Nov. 15, 1922 · Supreme Court of North Carolina

184 N.C. 398

CONESTEE CHEMICAL COMPANY, Inc., v. W. C. LONG et al.

(Filed 15 November, 1922.)

1. Judgments — Term—Presumptive Date — Signed Out of Term — Consent.

Tbe provisions of C. S., 613, that judgments relate to tbe first day of tbe term, apply when tbe judgment was rendered and docketed during tbe term, or witbin ten days after adjournment thereof, and not to a judgment signed out of term by tbe consent of tbe parties, except where third persons are prejudiced; and tbe position may not be maintained that a sale of lands to be made by commissioners appointed to sell property, etc., was not made witbin tbe time prescribed by tbe order, under the theory that tbe date of tbe order was to relate back to tbe commencement of tbe term, when it appears that by consent tbe order was signed after tbe term of court, and tbe sale occurred within tbe time prescribed from tbe actual date on which tbe judge signed it.

2. Appeal and Error — Findings by Court — Consent—Evidence.

Where tbe judge finds by consent tbe facts controverted in tbe action, bis findings are not reviewable on appeal to tbe Supreme Court when supported by evidence.

3. Same — Judicial Sales — Confirmation—Discretion of Court.

Tbe confirmation of a judicial sale by tbe Superior Court judge is a matter witbin bis sound discretion, and will not be reviewed by tbe Supreme Court on appeal when it has been exercised reasonably and not arbitrarily.

Appeal by defendant from Lane, J., at December Term, 1921, of RICHMOND.

On 4 March, 1920, tbe defendant Long executed and delivered to tbe plaintiff a chattel mortgage and crop lien to secure bis promissory note to tbe plaintiff in tbe sum of $4,795, due on 15 November, 1920. Tbe defendant made default in payment, and in Richmond County a consent judgment was rendered against him on 3 June, 1921, for tbe amount of tbe note, with interest, and a commissioner was appointed to sell at private sale so mucb of tbe mortgaged property as was seized under proceedings in claim and delivery. Tbe commissioner sold 59 bales of cotton at 9 cents, and realized $2,121.39, and made report of bis sale on 1 August, 1921. At tbe September Term, 1921, tbe defendant filed written objections to tbe confirmation and several affidavits were filed. Tbe cause was continued, and it was agreed tbat tbe judge might render final judgment outside tbe district in vacation. After finding tbe facts from tbe evidence bis Honor signed a judgment on 31 August, 1922, confirming tbe sale and crediting tbe amount of tbe note witb tlie proceeds. Tbe defendant excepted and appealed.

J. Chesley Sedberry and J. G. McCormick for the commissioner.

W. B. J ones a/nd Stack, Parker & Craig for defendant.

AdaMS, J.

In tbe judgment to wbicb tbe parties expressly consented it was provided tbat tbe commissioner should make sale within sixty days from tbe date of tbe order. Tbe judgment was rendered as of tbe May Term, 1921, but bis Honor found tbe facts to be tbat it was “signed and entered” on 3 June, and tbat tbe sale was made on 1 August, and within tbe time prescribed. Tbe relation of a judgment to tbe first day of tbe term applies when tbe judgment is rendered during a term and docketed during tbe same term, or within ten days after tbe adjournment. C. S., 613. Tbe statute does not purport to apply to a judgment signed out of term, and a judgment nunc pro tunc, though by agreement, is not allowed to take effect by relation to tbe prejudice of third parties. Hardware Co. v. Holt, 173 N. C., 310; Ferrell v. Hales, 119 N. C., 199. Tbe defendant’s first assignment of error therefore cannot be sustained.

Tbe second and third assignments involve questions of fact. There was evidence to support each finding, and it is well established tbat in such cases tbe facts as found by tbe trial judge are not subject to review in this Court. Harris v. Smith, 144 N. C., 439; Jordan v. Bryan, 103 N. C., 59; Strauss v. Frederick, 98 N. C., 60.

Tbe defendant further assigned as error bis Honor’s confirmation of tbe commissioner’s sale and tbe order directing tbe clerk to credit tbe judgment witb tbe proceeds of tbe sale, less tbe expenses. In our view of tbe law it is not necessary to discuss tbe various contentions in behalf of and in opposition to tbe order confirming tbe sale. Whether a judicial sale should be confirmed is ordinarily a matter within tbe sound equitable discretion of tbe court. True, tbe discretion must be exercised reasonably and not arbitrarily; but if it appears tbat tbe sale was free from deception and unfair advantage, and tbat tbe order of confirmation was made in tbe exercise of a discretion wbicb was not abused, tbe courts “will not be astute to find objections.” Sutton v. Craddock, 174 N. C., 276; Thompson v. Rospigliosi, 162 N. C., 147; Vaughan v. Gooch, 92 N. C., 529; Wood v. Parker, 63 N. C., 379.

We have considered all tbe exceptions and have concluded, upon the whole record, that the defendant cannot claim the relief sought as a matter of legal right. The judgment is therefore

Affirmed.