By the act of 1879, ch. 63, entitled “ an act defining the jurisdiction of judges of the superior courts as to granting injunctions and restraining orders, &c.,” it is provided that all restraining orders granted by any of the judges shall be made returnable before the resident judge of the district, or the judge assigned to the district, or holding by exchange the courts of the district in which the action ma3 be depending.
It is perfectly manifest that this statute, with a view' to. prevent the inconvenience of parties, intended to fix the place where rather than the persons before whom such orders should be made returnable, and that the judges were denominated in the order in which we find them because it was supposed that one or the other of them would at all times b.e within the district of the action.
As the inconvenience, resulting from an order requiring his attendance in Raleigh to the defendant living in the *550ninth judicial district and having an action there pending against him, could be lessened by the consideration that the matter was to be heard by one who happened to be the judge of Iris district, it cannot be that an order so returnable is within the contemplation of the statute. If it turn out that neither one of the judges indicated is in place when the order should be returned, (as we can well see may sometimes happen owing to the inequality in the duration of terms of court in several of the districts, and as really did happen in this instance from that very cause) then it is simply a case not provided for under the statute, and such as no judge has within himself the power or right to provide for. It was an error therefore in His Honor to have made his first order, restraining the defendant, returnable at a point outside the district in which the action waspending; and if the defendant had relied on that circumstance and taken his exception in apt time, he would have been entitled to have the order set aside on.Jhat ground. But it was a case of mere irregularity, and not of any failure of jurisdiction in the court, and like every other irregularity could be waived ; and we are of the opinion that by filing his counter-affidavits going full} so the merits of the case, and by allowing His Honor after full notice of tbe time and place to hear and determine the motion upon the merits as disclosed in the affidavits of the parties -without once raising a question as to the regularity of the proceeding, tbe defendant in this case did waive all subsequent right of objection on that account. For this reason alone tbe defendant’s motion made first in this court to vacate the order of injunction on the ground of irregularity, is denied, without our stopping to inquire whether, since the first order expired by force of its own terms on the 14th of July, the cause did not stand before His Honor on the 27th just as if no such order had ever been granted, or how far the power of the judges of the state to grant injunctions *551without notice has been affected by the legislation since the Code.
Looking too to the facts as alleged and admitted by the parties in their affidavits, we think the defendant has no cause to complain of the action of the court in restraining the sale of the land until the rights of the parties could be fairly heard and passed upon. Apart from the questionable character of the instrument itself, claimed to be the will of the deceased, Coleman, it appears from the record to have been offered for probate wholly without notice to the heirs, and to have been admitted upon proof altogether insufficient for the purpose. It does not even appear that the witnesses who testified to its being in the handwriting of the deceased, qualified themselves to do so by showing that they had a previous acquaintance with his handwriting; nor do we know when or in whose hands the instrument was found after the death of the party, and being a holograph will, if a will at all, these all became matters of interest. It may be that in fact every demand of the law was complied with and the action of the clerk in admitting the instrument to probate as a will, fully justified by the evidence before him. If so, it was the folly of the defendant not to have made it clear to the court. There is no room for the maxim omnia ‘prsesumuntur rite esse acta in a case like this in which a paper after being so many years suppressed is offered and admitted to probate without notice to the parties interested. Again, there have been two administrators upon the estate of the deceased and the account of neither has been settled. It is admitted that some assets went into the hands of the firstand the parties differ as to the amount. It is the right of the heirs to have this question settled before their land should be sold.
The order continuing the injunction until the trial of the action is affirmed. Let this be certified.
No error. Affirmed.