The question involved: Vas the court below correct in retaining the cause on the docket to the end that a determination of the issues of fact raised by Exception No. 1 of movants or protestants may be considered? We think so. This cause has heretofore been before this Court. Spence v. Granger, 204 N. C., 247. One of the fundamental principles of law which has come down to us “from time whereof the memory of man runneth not to the contrary” is that every party affected by an action or proceeding is entitled to notice and an opportunity to be heard. The original trouble in this whole matter was that there was no notice of the supplemental order assessing against each landowner an increase of 40 per cent over the former assessment. This was vital. Staton v. Staton, 148 N. C., 490; Banks v. Lane, 170 N. C., 14. A party to an action can waive notice in many ways, and this waiver amounts in law to a general appearance. Buncombe County v. Penland, 206 N. C., 299; Smith v. Haughton, 206 N. C., 587.
In Harrell v. Welstead, 206 N. C., 817 (819-820), it is written: “Nor did the corporate defendant’s appearance by motion to vacate said judg*22ment give life to that which was then a nullity. Such appearance put the corporate defendant in court, but only as a defendant with the right to answer to the merits, and not for the purpose of validating a judgment previously entered cutting off such right. Motor Co. v. Reaves, 184 N. C., 260, 114 S. E., 175; Michigan Central R. R. v. Mix, 278 U. S., 492; 15 R. C. L., 700.”
On the former appeal to this Court the movants or protestants relied on Exception No. 1, which is as follows: “That they except to the apparent reassessment levied against them by said jurors for the reason that their lands do not drain from the Shepherd Jury Ditch; that it was so understood at the time of the original assessment, as is stated in the affidavit of J. B. Leigh, heretofore filed, which is incorporated herein and by reference made a part of this paragraph; and that the costs placed against them on the original assessment were for the costs of an intercept ditch, for which they voluntarily agreed to pay.”
In the former Spence case, supra, page 251, we said: “We think this exception and assignment of error well taken. Although this proceeding is under the statute establishing a ‘jury ditch,’ yet the principle under the general drainage act is analogous and applicable.”
N. C. Code, 1931 (Michie), C. S., 637, is as follows: “Whenever a civil action or special proceeding begun before the clerk of a Superior Court is for any ground whatever sent to the Superior Court before the judge, the judge has jurisdiction; and it is his duty, upon the request of either party, to proceed to hear and determine all matters in controversy in such action, unless it appears to him that justice would be more cheaply and speedily administered by sending the action back to be proceeded in before the clerk, in which case he may do so.”
In Hall v. Artis, 186 N. C., 105 (106), speaking 'to the subject: “Referring to the question, in Anderson's case, 132 N. C., 244, Montgomery, J., said: ‘Although the proceedings originally had before the clerk were a nullity, for the reasons already pointed out, yet when the matter got into the Superior Court by appeal, that court then acquired jurisdiction. Roseman v. Roseman, 127 N. C., 494; Ledbetter v. Pinner, 120 N. C., 455; Faison v. Williams, 121 N. C., 152.’ See, also, C. S., 637.” In re Estate of Wright and Wriglit v. Ball, 200 N. C., 620 (628). N. C. Code, 1931 (Michie), sec. 5287, under “Drainage,” provides that appeal may be had from orders or judgment of the clerk, as in special proceedings.
We think the court below had the authority to make the order or judgment appealed from. The same is
Affirmed.