Weston v. Hasty, 260 N.C. 444 (1963)

Nov. 6, 1963 · Supreme Court of North Carolina

260 N.C. 444

SARAH FURR WESTON, F. L. FURR, F. S. FURR, L. W. FURR, JESSIE F. HARTSELL, C. B. FURR, R. H. FURR, SELMA FURR SAMS, JULIA FURR FREEMAN, HELEN H. SUTTON, J. ROBERT HOWIE, HENRY H. HOWIE, BRICE G. HOWIE, LOUELLA H. BIVENS, ELIZABETH HOWIE, ROBERT HUNTLEY and FRIEDA HUNTLEY v. CLARENCE HASTY and wife, CALLIE LUCILLE HASTY; BRONS HASTY and wife, MARGIE MARIE HASTY; C. W. DRAKE and wife, IRIS ELIZABETH DRAKE.

(Filed 6 November 1963.)

Appeal and Error § 3; Judgments § 2—

Where, after agreement that ¡the court might enter judgment out of term and out of ¡the district, plaintiff’s counsel, who was (to prepare the judgment, becomes ill and no judgment is tendered until some year and four months after the term, the judge may properly refuse to- sign the judgment and properly directs that the action be heard He novo, and an appeal from his refusal to sign the judgment will he dismissed, there being no judgment from which an appeal might be taken. Further, the Supreme Count, in the exercise of its general supervisory jurisdiction, will order that the canse be heard He novo in- the county in which it was instituted.

PURPORTED ¡appeal by plaintiffs in an- 'action pending in UNION Superior -Court.

Carswell & Justice and Kermit Caldwell for plaintiff appellants.

Richardson & Dawkins and Coble Funderburk for defendant ap-pellees.

Per Curiam.

In this ¡action, which was instituted October 22, 1957, plaintiffs ¡and defendants, in their respective pleadings, assert ownership of -certain lands in Goose Creek Township, Union County.

A stipulation -dated November 9, 1961, sets forth that “(u)p-on the hearing ¡of the above controversy without action ¡before the Honorable Allen H. Gwyn, Judge Presiding at the October 1961 Criminal and Civil Term of the Superior Court of Union County,” plaintiffs -and defendants, through their attorneys of record, “in open court hereby stipulate and agree that the Judgment in the -above ¡controversy without ¡action may be signed by -the presiding judge -out ¡of term and out of district.”

The (attorney for plaintiffs who was to prepare ¡and ¡submit a pro-poised judgment to Judge Gwyn became sick. No judgment was prepared -and presented during the period (Fall Term 1961) Judge Gwyn was -the superior ¡court judge holding in regular rotation the courts of the Twentieth Judicial District. On February 23, 1963, plaintiffs’ at-tomeyis tendered to Judge Gwyn at Chambers in Reidsville, North Carolina, a proposed judgment which eootains what purports to be an “agreed 'Statement of facts” and an adjudication of the -respective rights of the parties. Judge Gwyn, being uncertain' as to precisely what -had been said land done at said October Term 1961 of Union Superior Court and being of opinion he had no jurisdiction after December 31, 1961, to conduct a hearing or enter judgment, declined to sign .the proposed judgment tendered February 23, 1963, -and refused to hear and pass upon the matter de novo.

No judgment has been entered. Plaintiffs attempt to appeal from Judge Gwyn’s refusal to act further in the matter. Under the 'circumstances, without reference to whether he had jurisdiction, Judge Gwyn’s refusal to act further was permissible and proper.

The purported appeal is dismissed; and, in the exercise of its power “to issue my remedial writs necessary to give it a general supervision and control over the proceedings of the other courts” (North Carolina Constitution, Article IV, Section 10(1) ), this Court orders that the cause be heard de novo in regular course in the Superior Court of Union Counity. It is noted that Judge Gwyn suggested that plaintiffs should proceed as this Court now directs.

Appeal dismissed.