#### A. E. WILSON and C. L. WILSON, Administrators of the Estate of A. G. WILSON, MRS. C. J. WILSON, Widow of A. G. WILSON, and EMMA HENSLEY et al., Heirs at Law of A. G. WILSON, Petitioners. Ex Parte.

(Filed 14 October, 1942.)

1. Executors and Administrators § 13c: Partition § 4d: Judicial Sales §§ 2, 5—

In special proceedings before tbe clerk to sell lands for partition or to make assets, tbe jurisdiction includes the right to accept a bid through commissioners, whether at public or private sale, and to compel the purchaser to comply with his contract; and the court has all powers necessary to accomplish its purpose.

2. Trial § 5—

Where relief can be given in the pending action it must be done by a motion in the cause and not by an independent action, which is allowed only where the matter has been closed by final judgment.

3. Judicial Sales §§ 5, 7: Executors and Administrators § 13c—

An order confirming a sale is not a final judgment, and, if the purchaser fails to comply with his bid, the remedy is by motion in the cause; and in like manner a purchaser may proceed to compel the execution of a deed.

4. Clerks of Superior Courts § 3: Judges § 2—

The clerk is only a part of the Superior Court and, when an action or special proceeding, pending before the clerk, is brought before the judge, the judge is vested with ample authority to deal with it. C. S., 637.

5. Executors and Administrators § 13c: Injunctions § 11: Judges § 2—

In a special proceeding for sale to make assets, by the administrators, widow and heirs at law of deceased, petitioners, there was a judgment by the clerk, authorizing a contract of sale of timber to a lumber company, and commissioners appointed, upon whose report the clerk confirmed and ratified the contract. Thereafter petitioners applied to the resident judge for a temporary restraining order against the lumber company, to stop cutting and removal, for failure to comply with the contract, which was granted and show cause order issued; whereupon the lumber company entered a special appearance and moved, before the judge holding the courts of the district, to vacate the restraining order, which motion was denied and restraining order continued to the hearing, and the lumber, company appealed. Held: Lumber company is a party to the proceeding, no final judgment has been entered, and all orders valid.

Barnhill, J., concurring.

Winborne and Denny. JJ., join in concurring opinion.

Appeal by tbe Fletcber Lumber Company from judgment of Sink, J., at Chambers in Marion, 18 February, 1942. . From Yancey.

Tbis is a special proceeding commenced by petition filed before tbe clerk of tbe Superior Court of Yancey County by tbe administrators, *100widow and beirs at law of the late A. Gr. Wilson, being all the parties in interest and asking the same relief, under C. S., 759; wherein the petitioners seek a decree for the private sale of timber belonging to the estate of the decedent to make assets with which to pay off the debts of the decedent. Michie’s N. 0. Code, 1939, sec. 74.

In response to said petition the clerk of the Superior Court of Yancey County, by judgment dated 20 January, 1941, approved and authorized a proposed contract of sale of certain timber rights to the Fletcher Lumber Company (copy of which contract was made a part of the judgment), and appointed A. E. Wilson and C. L. Wilson commissioners to make sale in accord therewith, and closed the judgment with “This cause is retained for' further direction,” and on the same date, 20 January, 1941, the commissioners reported that they had entered into the approved contract with the Fletcher Lumber Company, and on 1 February, 1941, the clerk confirmed and ratified said contract.

On 19 December, 1941, the petitioners applied to Pless, Resident Judge, for an order restraining the Fletcher Lumber Company from cutting or removing any more timber from the land of the estate of the decedent for the reason that said company had failed to comply with the provisions of its contract with regard to payments and in regard to entering into an arbitration in event of disagreements, and for the further reason that said contract provided that “the title to all timber and its products sought to be sold by this contract is expressly retained by the sellers until full payment is made therefor.” Whereupon Pless, J., ordered the Fletcher Lumber Company to appear and show cause, if any it had, why the restraining order should not be granted.

On 22 January, 1942, Pless, Resident Judge, issued an order restraining the Fletcher Lumber Company, its agents, servants and employees from removing any further lumber, timber or timber products cut by it under the aforesaid contract until further orders of the court, and directing the Fletcher Lumber Company to appear on 7 February, 1942, at Marion, and show cause, if any it had, why the restraining order should not be continued to the final hearing.

After giving ten days notice to the petitioners of its intention so.to do, the Fletcher Lumber Company on 10 February, 1942, entered a special appearance before Sink, J., holding the courts of the 18th Judicial District, and moved ‘the court to vacate the temporary restraining order issued by Pless, J., on 22 January, 1942, and on 10 February, 1942, Sink, J., vacated the temporary restraining order of Pless, J., but subsequently held such vacation “to be ineffectual” and continued the hearing till 18 February, 1942, when it was “considered, ordered and .adjudged by the Court that the Fletcher Lumber Company, Inc., be and hereby is enjoined and restrained until a hearing from moving from the lands of *101tbe petitioners tbe timber products referred to in tbe application as not having been paid for and tbe temporary order is continued until tbe bearing.”

To tbe judgment of Sink, J., continuing tbe restraining order to the bearing tbe Fletcher Lumber Company reserved exception, and appealed.

Anglin & Randolph and J. Scroop Styles for petitioners, appellees.

Dover R. Fonts and J. W. Haynes for Fletcher I/amber Company, appellant.

Schenck, J.

This appeal poses only two questions: first, Did tbe court err in denying appellant’s motion, made under special appearance, to vacate tbe restraining order for tbe reason that tbe Fletcher Lumber Company was not a party to tbe original ex parte proceeding before tbe clerk?, and second, Did tbe court err in denying said motion for tbe reason that a final judgment bad been entered in said proceeding? We are of tbe opinion, and so bold, that a negative answer is proper to both questions.

Appellant’s position that tbe Fletcher Lumber Company is not a party to tbe ex parte proceeding is untenable. Tbe contract with tbe lumber company is specifically made a part of tbe court order, and by signing said contract and beginning operations thereunder, after its submission to and approval by tbe court, tbe lumber company made itself a party to tbe proceeding and submitted itself to tbe jurisdiction of tbe court, and tbe court was thereby vested with tbe power to enforce compliance with tbe contract, and this power continues to exist until tbe contract is fully performed.

In a proceeding before tbe clerk to sell tbe land of tenants in common it was held that tbe jurisdiction of tbe court included tbe right to accept a private bid through its commissioner, as was done in tbe instant case, and “When tbe bid is accepted, whether it was at public or private sale, tbe Court has jurisdiction over tbe purchaser for tbe purpose of enforcing compliance with it.” Wooten v. Cunningham, 171 N. C., 123, 88 S. E., 1, and eases there cited.

“In a proceeding to sell lands for assets tbe court of equity has all tbe powers necessary to accomplish its purpose and when relief can be given in tbe pending action it must be done by a motion in tbe cause and not by an independent action. Tbe latter is allowed only where tbe matter has been closed by a final judgment. If tbe purchaser fails to comply with bis bid, tbe remedy is by motion in tbe cause to show cause, etc., and if this mode be not pursued, and a new action is brought, tbe court ex mero motu will dismiss it. This course is adopted to avoid tbe multiplicity of suits, avoid delay, and save costs. Hudson v. Coble, 97 N. C., 260; Pettillo, ex parte, 80 N. C., 50; Mason v. Miles, 63 N. C., 564, and *102numerous eases cited in them.” Marsh, Administrator, v. Nimocks et al., 122 N. C., 478, 29 S. E., 840.

The contention of the appellant that the order of the clerk of 20 January, 1941, approving the proposed contract between the petitioners and the Fletcher Lumber Company, and authorizing, empowering and directing its execution, and the collection of the payments due thereunder and the full performance of the provisions of the contract was a final judgment, and therefore the restraining order issued thereafter was unauthorized by law, is untenable.

This order of confirmation was not a final judgment for the reason that the contract provides for deferred payments to be made to the commissioners, who were officers of the court, to be applied on the debts of the decedent, and a final judgment could not be made until the last payment of the purchase price of the timber was made. “The action is not ended as long as anything remains to be done.” Hoff v. Crafton, 79 N. C., 592.

In Long v. Jarrett, 94 N. C., 444, where an administrator had sold land to make assets and an independent action was brought by the administrator of the purchaser to have deed executed the court dismissed the action and held that a motion in the cause was the proper remedy, it is written: “The proceeding in which the land was sold has not been terminated by any final order or decree, nor will it be, until the purchase money for the land has been paid, and a proper order entered, directing title to be made to the purchaser, or to the person to whom he may have transferred his bid. That proceeding is. still pending, in the contemplation of law, and if it has been allowed to disappear from the current docket of the Court, it may be brought forward upon motion therein for that purpose.”

“By means of that proceeding, the Court has complete jurisdiction of the administrators of R. C. Puryear, his heirs at law, and the land in question, for the purpose of completing the sale of the land, and it ought to exercise its jurisdiction over the parties and subject matter of the proceeding, until the latter shall be determined according to law. The Court ought not, and will not, in another proceeding or action, take jurisdiction of the same parties and the same subject matter, and do therein what ought properly and regularly to be done in the incomplete proceeding. The law requires consistency in procedure, and in the exercise of jurisdictional authority. It avoids and prevents confusion and multiplicity of actions in respect to the same cause of action, and it will not allow its purpose in these respects to be defeated by the consent, assent, or inadvertence of parties. Hence it will not tolerate the inconsistency and practical absurdity of suspending or stopping an action before it is completed, and do what ought legitimately to be done in it, in another and distinct action.”

*103The reverse is also true; that is,-a motion in the cause is the proper remedy by an administrator to collect past-due payments from a purchaser of land sold to make assets, as well as by such purchaser against an administrator to compel the execution of deed for such land.

“Numerous adjudications have established the general proposition that where relief can be had in a pending cause, it must be there sought. . . . The authorities are also uniform that a court of general jurisdiction, ordering a sale of land, can and will afford a complete remedy in the proceeding against one buying under its decree.” Crawford v. Allen, 180 N. C., 245, 104 S. E., 468.

And for a further reason, it appears from the order of the clerk of 20 January, 1941, approving and authorizing the contract between the petitioners and the Fletcher Lumber 'Company that it was not contemplated that such order was a final judgment, since it concludes with “This cause is retained for further direction.”

Both the resident judge and the judge holding the courts of the district had jurisdiction to issue the orders made by them. This proceeding was before the clerk when he issued the order of 20 January, 1941, approving and authorizing the contract of sale and purchase of the timber belonging to the estate of the decedent, and on 1 February, 1941, when he confirmed and ratified the contract. The resident judge on 22 January, 1942, when he issued the temporary restraining order and notice to show cause why such order should not be continued to the final hearing, was vested with ample authority to deal with the case, as was likewise the judge holding the courts of the district on 18 February, 1942, when he continued the restraining order theretofore issued by the resident judge to the final hearing. “It is established by numerous decisions that the clerk is but a part of the Superior Court and when a proceeding of this character is brought before the judge for his approval, he is vested with ample authority to deal with it. Williams v. Dunn, supra (158 N. C., 399, 74 S. E., 99) ; Smith v. Gudger, supra (133 N. C., 627, 45 S. E., 955); In re Anderson, supra (132 N. C., 243, 43 S. E., 649).” Perry v. Passenger, 219 N. C., 838, 15 S. E. (2d), 365. “Whenever a civil action or special proceeding begun before the clerk of a Superior Court is for any ground whatever sent to the Superior Court before the judge, the judge has jurisdiction; and it is his duty, upon the request of either party, to proceed to hear and determine all matters in controversy in such action. . . .” C. S., 637.

The judgment of the Superior Court is

Affirmed.

Barnhill, J.,

concurring: This appeal presents two primary questions. 1. Does a purchaser at a judicial sale by a commissioner ap*104pointed by the clerk of the Superior Court in a special proceedings to sell land to make assets, by virtue of his relationship, become a party to the proceeding so as to subject him to the further orders of the court in the cause ? 2. If so, does the judge of the Superior Court have jurisdiction, on motion and notice, to issue a restraining order in a special proceedings, pending before the clerk, to sell land to make assets ?

The majority opinion answers in the affirmative. I concur. In so doing I desire to discuss the second question, which is one of procedure important to the legal profession.

We have but one Superior Court, which is a court of general jurisdiction. The jurisdiction conferred on this court by the Legislature under authority of the Constitution (N. C. Const., Art. IY, sec. 12), is apportioned in part to the clerk of the Superior Court, in part to the judge in chambers and in part to the judge at term.

The clerk is charged with the exercise of important judicial powers (O. S., ch. 13), in the exercise of which he represents and acts as and for the court. His action is the action of the Superior Court. The court exercises its power through him, subject to the supervision and control of his action by the judge provided by law. That is, certain of the court’s powers, specified by statute, are exercised by the clerk and his action, when taken, stands and prevails unless modified or set aside by the judge in the manner prescribed by statute. Brittain v. Mull, 91 N. C., 498.

Whenever the term “Superior Court” or “Court” is used in statutes relating to jurisdiction of the Superior Court it means clerk of the Superior Court unless otherwise specially stated, or unless reference is made to a term of court. C. S., 397. Likewise, jurisdiction to hear and decide all questions of practice and procedure and all other matters over which jurisdiction is given to the Superior Court is vested in the clerk unless the judge of the court or the court at term is expressly referred to. C. S., 403.

Whenever the clerk exceeds his jurisdiction and acts without authority, Hodges v. Lipscomb, 133 N. C., 199, or whenever the cause is improperly brought before the clerk, Springs v. Scott, 132 N. C., 548; Smith v. Gudger, 133 N. C., 627; Ryder v. Oates, 173 N. C., 569, 92 S. E., 508, or whenever the clerk has no jurisdiction, Roseman v. Roseman, 127 N. C., 494; In re Anderson, 132 N. C., 243; Williams v. Dunn, 158 N. C., 399, 74 S. E., 99, and the cause is “for any ground whatever” sent to the judge, the judge may retain jurisdiction and dispose of the cause as if originally returnable before him. Perry v. Bassenger, 219 N. C., 838, 15 S. E. (2d), 365. When an issue of fact is raised by the pleadings in a special proceeding the clerk is required to transfer it to the civil issue docket without motion or appeal. C. S., 758.

*105When the summons in. a case of which the Superior Court has jurisdiction is brought before the clerk or before the clerk at term, or before the judge in chambers it is equally in the Superior Court and there can be no defect of jurisdiction. Ewbank v. Turner, 134 N. C., 77.

Hence,- the clerk acts for, in and as a part of the Superior Court, and matters before the clerk are in the Superior Court. Roseman v. Roseman, supra; Williams v. Dunn, supra; Perry v. Bassenger, supra. The clerk and the judge each performs the duties and exercises the jurisdiction imposed upon him by statute, the jurisdiction of the judge in matters pending before the clerk not being derivative but supervisory in nature. Perry v. Bassenger, supra.

Procedural law should be simple, direct and efficacious, so framed as to promote the speedy administration of justice as cheaply as is consistent with due regard to the rights of the parties. To this end the Legislature enacted C. S., 637. This statute, which has done so much to facilitate the efficient administration of justice, has always received the liberal interpretation that would best promote its beneficent purpose. Williams v. Dunn, supra; Bynum v. Bank, 219 N. C., 109, 12 S. E. (2d), 898. While this case may not come within the letter of that act, it is within its spirit and intent. When a motion of this character is brought before the judge, all parties having been duly notified, there is no sound reason why the principles expressly established by this law in all civil actions and special proceedings should not prevail here. Williams v. Dunn, supra.

Aside from C. S., 637,1 am of the opinion that the judge had authority to act. The proceeding was pending in the Superior Court before the clerk. The respondent was a party. The petitioners desired relief in equity which the clerk was without authority to grant. They applied by petition, after due notice, to the branch of the same court which had jurisdiction, for a writ necessary to hold the property in statu quo, pending further action by the clerk. This procedure does no one detriment, saves time and costs, and avoids the unseemly “marching and counter-marching” incident to the old practice, when a plaintiff was put out of court but was permitted to come back into the same court provided he could eorreetly guess the door through which he should enter. Ewbank v. Turner, supra; Harris v. Board of Education, 216 N. C., 147, 4 S. E. (2d), 328; Perry v. Bassenger, supra.

This conclusion is not affected by the fact that this special proceeding was, under the old practice, a probate matter. The office of probate judge has been abolished and the duties heretofore pertaining to the clerks of the Superior Court as judges of probate are now performed by the clerk as such. C. S., 925; Brittain v. Mull, supra.

WiNBORNE and DeNNY, JJ., join in concurring opinion.