{ "id": 8650579, "name": "N. H. GODWIN et al. v. HINTON MONDS et al.", "name_abbreviation": "Godwin v. Monds", "decision_date": "1888-09", "docket_number": "", "first_page": "354", "last_page": "356", "citations": [ { "type": "official", "cite": "101 N.C. 354" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "99 N. C., 363", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650401 ], "opinion_index": 0, "case_paths": [ "/nc/99/0363-01" ] }, { "cite": "97 N. C., 374", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650469 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/97/0374-01" ] }, { "cite": "99 N. C., 248", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650029 ], "opinion_index": 0, "case_paths": [ "/nc/99/0248-01" ] } ], "analysis": { "cardinality": 250, "char_count": 3931, "ocr_confidence": 0.504, "pagerank": { "raw": 3.7772126233304705e-07, "percentile": 0.8963955041394305 }, "sha256": "89446263e29fe291b2f1d3cc69cd641c4a8e6eb60db9dfcc0ce4e36524e7e01c", "simhash": "1:14396c30fa7bb67f", "word_count": 696 }, "last_updated": "2023-07-14T16:51:11.114152+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "N. H. GODWIN et al. v. HINTON MONDS et al." ], "opinions": [ { "text": "Merrimon, J.\nThere is no statutory provision that confers upon a Judge authority to hear and determine upon its merits a motion to set aside-a,judgment in an action pend-., ing in the Superior Court elsewhere than in the County in whose Court the action is pending, and this cannot be done in the ordinary course of procedure. McNeill v. Hodges, 99 N. C., 248.\nThe parties to the action might, by common consent, allow it to be done; but such consent should certainly appear in a writing signed by the parties or their counsel, or the Judge should recite the fact of consent in the order or judgment he directs tobe entered of record \u2014 which is the better way; or such consent should appear by fair implication from what appears in the record. This is necessary, because, without such consent appearing, the Court would have no authority to hear and determine the motion and grant the judgment. The consent is essential to the valid exercise of the authority, and it must appear to have been given. Bynum v. Powe, 97 N. C., 374; Gatewood v. Leak, 99 N. C., 363.\nIn does not appear in this case that the plaintiffs gave such consent in a writing signed by them or by their counsel, nor is the fact of such consent recited in the judgment by the Court, nor does it appear that the plaintiffs or their counsel were present at the hearing of the motion, and did not object, thereby implying such consent.\nIt was contended on the argument that the plaintiffs did not except, and assign as error, that the Judge heard the motion and gave judgment in the county of Anson. That is so; but it does not appear upon the face of the record in some way, as it should do, that the Court had authority to give the judgment, and therefore the objection might be taken here, in the absence of any formal exception or assignment of error. Generally, the Court could not exercise such authority \u2014 it could do so only by consent of the parties, and therefore the consent must appear in the record. Bynum v. Powe, supra, and the cases there cited.\nSo much of the order as sets aside the judgment must be reversed, and the motion he\u00e1rd and disposed of according to law.\nError.", "type": "majority", "author": "Merrimon, J." } ], "attorneys": [ "Mr. F. P. Jones, for the plaintiffs.", "Mr. R. P. Buxton, (and Mr. H, McD. Robinson filed a brief) for the defendants." ], "corrections": "", "head_matter": "N. H. GODWIN et al. v. HINTON MONDS et al.\nJurisdiction \u2014 Assignment of F/rror \u2014 Appeal\u2014Motion to Vacate Judgment.\n1. A Judge of the Superior Court has no jurisdiction to hear and determine actions or interlocutory motions and orders therein without the'county in which such actions may be pending, unless by the consent of the xiarties thereto. \u2022\n2. The consent necessary to give jurisdiction to hear in a county other than that in which the action is pending must affirmatively appear in the record; and if it does not, the error may be assigned in the Supreme Court.\nThis is a MOTION to vacate a judgment rendered in an \u2022action pending in Cumberland Superior Court, hea'd before Shepherd, J., in Chambers at Wadesboro, in the county of Anson, on October 4th, 1888.\nIn this action the plaintiffs obtained a judgment for the want of an answer; the defendants moved, upon affidavits, before a Judge at Chambers to set that judgment aside, &c., because of their \u201c mistake, inadvertence, surprise, or excusable negligence.\u201d Thereupon the Judge made an order\u2014\n\u201cThat the Clerk of the Superior.Court of Cumberland County issue notice to. the plaintiffs to show cause at Chambers at Wadesboro, on September 7th, 1888, why the execution and writ of possession issued in this cause, and now in the hands of the Sheriff of Harnett County, should not be set aside, and why the judgment in this cause shall not also beset aside and the case re-opened to be tried upon its merits.\u201d\nAfterwards, at Wadesboro, in the county of .Anson, the Court heard the motion upon the merits, and made an order setting the judgment complained of aside, whereupon the plaintiffs appealed.\nMr. F. P. Jones, for the plaintiffs.\nMr. R. P. Buxton, (and Mr. H, McD. Robinson filed a brief) for the defendants." }, "file_name": "0354-01", "first_page_order": 386, "last_page_order": 388 }