Blsanar v. Suttlemyre, 193 N.C. 711 (1927)

May 11, 1927 · Supreme Court of North Carolina

193 N.C. 711

GEORGE E. BlSANAR v. P. J. SUTTLEMYRE.

(Filed 11 May, 1927.)

1. Judgments — Terms—Rendered Outside of Ti’ial County — Consent— Agreement of Parties — Substantial Changes.

Where the parties to an action have agreed that the trial judge may consider the case and sign judgment heyond the limits of the county wherein the case was tried, and he has requested each of them to forward a judgment in accordance with intimations he has expressed, his signing of a judgment sent him by one of the parties is final and he may not, after forwarding it to the clerk of the court, make substantial corrections differing therefrom without the consent of all the parties litigant.

2. Same — Motions—Rights and Remedies — Appeal and Error — Remand.

Where by consent of the parties the trial judge has signed a final judgment out of term, and in another county from the place of trial, it is thereafter open to the party thereto objecting by a motion in the cause ox-other appropriate remedy to protect any legal rights that he may have.

Appeals by plaintiff and defendant fx-oxn Walter Siler, Emergency Judge, at December Term, 1926, of Catawba.

Civil action for trespass, and to remove obstruction from an alleyway.

Tbe case was referred to Hon. S. J. Ervin under tbe statute. Upon tbe coming in of the referee’s report, exceptions were duly filed thereto, and beard before bis Honor, Walter Siler, emex-gency judge, at tbe regular December Term, 1926, of Catawba Superior Court. Near tbe end of tbe term tbe judge announced from tbe bench tbe conclusions be bad reached on tbe several matters debated, and gave intimation in a general way of tbe character of judgment be would render. It was thereupon agreed that tbe judgment might be signed out of term and out of tbe district. Tbe court requested counsel for both plaintiff and defendant to draw judgment and forward same to him at bis home in Pittsboro, N. C. On 20 December, 1926, counsel for defendant sent to tbe judge a judgment, which they understood to be in keeping with bis intimations, but stated that opposing counsel bad not consented to it. This judgment was signed on 23 December, 1926, promptly returned and docketed.

Thereafter, on 15 January, 1927, on application of plaintiff and without notice to tbe defendant, Judge Siler signed an order at bis .borne in Pittsboro, rescinding said judgment, and on 3 February, 1927, at Raleigh, N. C., after notice to tbe defendant, and over bis objection, tbe judge signed what is termed a final judgment in tbe cause, from which both sides appeal, assigning errors.

Thomas P. Pruitt, William L. Marshall, and Waller G. Feimsler for X>lainiiff.

E. B. Cline and Self & Bagby for defendant.

Stacy, C. J.,

after stating tbe case: It is tbe uniform bolding in.this 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 of tbe county in which tbe action is pending. Gaster v. Thomas, 188 N. C., 346; Cahoon v. Brinkley, 176 N. C., 5; Mann v. Mann, ibid., 353; Cox v. Borden, 167 N. C., 320; Bank v. Peregoy, 147 N. C., 293; Godwin v. Monds, 101 N. C., 354; McNeill v. Hodges, 99 N. C., 248; Moore v. Hinnant, 90 N. C., 163. See, also, Thomas v. Watkins, ante, 630.

Mr. Freeman, in his valuable work on Judgments, Yol. 1 (5 ed.), 2(39, speaking to the subject of correcting judgments after term, says:

“As a general rule, unless control over it has been retained in some proper manner, or a statute otherwise provides, no final judgment can be amended after the term at which it was rendered or after it otherwise becomes a final judgment. The power of courts to correct clerical errors and misprisions and to' make the record speak the truth by nunc fro tunc amendments after the term does not enable them to change their judgments in substance or in any material respect. And this is true even though the judgment has not been formally entered of record by the clerk, where such entry is not essential to its validity. Consequently, it is well settled that, in the absence of statute permitting it, the law does not authorize the correction of judicial errors, however flagrant and ' glaring they may be, under the pretense of. correcting clerical errors. To entitle a party to an order amending a judgment, order, or decree, ordinarily, he must establish that the entry as made does not conform to. What the court ordered.”

In the case at bar, by consent of the parties, the judge was authorized to sign judgment out of term and out of the district. This ended, we think, when he signed the judgment, tendered by the defendant, on 23 December, 1926. His subsequent orders, therefore, were without warrant of law. Dunn v. Taylor, 187 N. C., 385. The defendant’s exceptions to these must be sustained, but this will be done without prejudice to the rights of the. plaintiff to question the judgment signed on 23 December, 1926, by motion in the cause, or other appropriate remedy. To this end the cause will be remanded for such further proceedings as the rights of the parties may require.

On defendant’s appeal, Error.

On plaintiff’s appeal, Remanded.