Hardin v. . Ray , 89 N.C. 364 ( 1883 )

The main question presented by the record for our consideration is whether a judge, after the adjournment of court, can render a judgment in a case tried before him at court, without the consent of the parties, it not being a case of which he was by law clothed with jurisdiction at chambers.

This cause was referred to a referee, who filed a report at fall term, 1881. Upon hearing the report of the referee, the exceptions thereto, and the argument of counsel, the court overruled the exceptions; and it appearing that a deed executed by the defendant to the plaintiff, under which he claimed title to the land, though absolute on its face, was admitted to have been intended to secure the payment of a sum of money, and the referee having found that a portion of the debt was still unpaid, the court held that the plaintiff was entitled to a writ of possession, and that the defendant Ray would be entitled to a reconveyance upon the payment by him of the unpaid residue of the debt mentioned in the referee's report.

The court announced before the adjournment, that it would be presumed that no objection would be taken to the signing of decrees and orders after the expiration of the term, and that counsel would be expected to submit orders and decrees, as drawn, to counsel appearing on the other side before asking the signature of the judge.

A judgment in favor of the plaintiff, embodying many points not decided by the court, was signed without examination by His Honor, after the expiration of the term and without having been submitted to the counsel for the defendant before the "signing."

The defendants excepted to the judgment, and in the statement of the case on appeal by His Honor, it is stated that the defendants' right to except to the judgment is conceded.

The judgment cannot be allowed to stand. It is reversed and a new trial ordered. Let this be certified to the superior court of Ashe county.

Error. Venire de novo.