Diana Green v. . Wm. H. Moore , 66 N.C. 425 ( 1872 )

Mason v. Miles, 63 N.C. 564, cited and distinguished from this case. This suit was commenced in the late Court of Equity, and was regularly transferred to the Superior Court. It appears from the record, that an interlocutory decree for the sale of the land was made, but there has been no hearing upon further directions, and a final decree made confirming the sale and determining the rights of the parties.

As the suit was in this condition when transferred to the Superior Court, it ought to have been proceeded in and determined according to the rules of Courts of Equity, existing when the present Constitution of the State was adopted. Const. Art. 4, sec. 25. C. C. P., sec. 402.

Under the old system, orders and decrees in a suit pending in a Court of Equity, could only be made in term time, and the Chancellor had no such jurisdiction at Chambers.

In a certain class of cases in England, the Chancellor would hear arguments and make decrees at his private room, but such decrees were only had by the consent of the Counsel, and were regarded as the acts of parties rather than the action of the Court. 2 Daniel, ch. Pr. 1191.

In this State the Chancellor sometimes heard causes and made decrees at his private room, but it was generally done by the consent of parties, and his action was always regarded as a proceeding in Court, and so entered on the record.

Mason v. Miles, 63 N.C. 564, was a case in which, under C. C. P., a motion in the cause might have been made before the Judge out of term; as final judgment had been rendered before the case had been transferred from the old to the new Court.

The proceedings in the case for a re-sale of the land appear to have been commenced before the Clerk of the Superior Court, who had no jurisdiction in the matter, as the transfer of the case placed it on the regular docket of the Superior Court, within the exclusive jurisdiction of the Judge.

The Judge could only hear and determine the cause in term time, and his order of re-sale made at Chambers cannot be sustained.

The proceedings in the case must be dismissed.

PER CURIAM. Proceedings dismissed.