
    DAVID CLARK, THE EUGENIA MANUFACTURING COMPANY et al. v. SACO-PETTEE MACHINE COMPANY et al.
    
    (Filed 1 April, 1909.)
    1. Pleadings — Power of Court — Discretion—Review—Appeal and Error.
    When there is no evidence that the discretionary powers of the trial judge have been abused in his refusal to reopen a pending .cause and permit answers to be filed, his decision is not reviewable.
    2. Jurisdiction — Consent of Parties — Judgment—Validity.
    A decree of confirmation of receiver’s report of sale of insolvent corporation’s property may, by consent, be made out of term and in another county than the one in which the cause is pending.
    3. Jurisdiction — Parties—Judgment—Defects—Confirmation.
    The legal effect of confirming a decree in term, when the court has jurisdiction over the parties and subject-matter, which was made out of term and in a different county from the one in-which the cause is pending, is the same as if the decree had been again written and entered at the term.
    4. Same.
    When, at a term of court having jurisdiction of the parties and subject-matter, a decree written and spread upon the minutes at a former term, and defective, is referred to and confirmed, it is given validity thereby.
    Appeal from Moore, from an order confirming report of sale of receiver, entered by Long, J., 9 September, 1908.
    This is a proceeding, brought under section 1199 of 'the Ee-visal, for the dissolution and settlement of the Eugenia Manufacturing Company, a corporation heretofore doing business in that portion of Moore County, N. C., now within the county of Lee. The creditors of the corporation are named as defendants in tbe proceeding. Tbe action was originally instituted in tbe Superior Court of Moore County and afterwards removed to tbe county of Lee. A. W. Grabam was duly appointed receiver of tbe said corporation. On 8 April, 1908, an order of sale and decree of foreclosure of a deed of trust securing- tbe bonded indebtedness of tbe corporation was made by J ones, J., at chambers, in Eichmond Comity. Tbis decree was filed in tbe Superior Court of Moore County on 8 April, 1908. Tbe property was not sold, as appears by tbe report of tbe' receiver to tbe April Term, 1908, of said court, and another decree was entered, which refers to tbe first-named decree, as follows: “And said decree is hereby in all other matters affirmed.” Tbe only modification made was in appointing another day' of sale. It appearing that April Term was a criminal term and, tbe property not having-been sold, another decree was entered at May Term, 1908, of tbe Superior Court of Moore County, as follows:
    “Tbis cause coming on to be beard at May Term, 1908, of tbe Superior Court of Moore County, before bis Honor, E. B. Jones, Judge presiding, and it appearing- to tbe court that all creditors and stockholders of tbe Eugenia Manufacturing Company have been made parties to tbis action, and that no answer nor demurrer has been filed to tbe complaint therein, and that an order of sale has heretofore been made of tbe real and personal property of tbe said Eugenia Manufacturing Company, which was affirmed at tbe. April Term, 1908,. of tbis court; and it appearing to tbe court that said April Term, 1908, -of tbis court was for tbe trial of criminal cases only, with tbe right to take judgment in civil actions when a jury trial was not required:
    “Now, therefore, upon motion of Walter Clark, Jr., and W. A. Devin, attorneys for tbe plaintiff and tbe receiver, it is ordered that tbe 'order of sale heretofore, made in tbis case be and tbe same is in all things confirmed, and it is further ordered that tbis cause be removed to tbe county of Lee; and it is further ordered that, in tbe event said receiver shall be of tbe opinion that it is to tbe interest of tbe creditors of tbe said Eugenia Manufacturing Company that tbe said sale be postponed to tbe first Monday in August, be is hereby authorized to postpone said sale. * E. B. Jontes,
    
      “Judge Presiding.”
    
    
      On 3 August, 1908, the receiver sold said property of the Eugenia Manufacturing Company at public auction, and on 3 August, 1908, in tbe office of tbe Superior Court of Lee County, filed bis report of sale. Answers were attempted to be filed on 17 August, 1908, by certain creditors, wbicb were ordered to be stricken from tbe record as baying been filed without leave after time for-pleading bad expired. Tbis feature of tbe case was considered by tbe Supreme Court in an opinion (ante, 88).
    At August Term, 1908, of tbe Superior Court of Lee County, tbe motion to confirm tbe sale was made, and resisted by certain creditors, by their attorneys, whereupon bis Honor, Judge Long, presiding, made an order, by consent, as follows:
    “Tbis cause coming on to be beard before bis Honor, B. F. Long, Judge presiding, upon motion and consent of tbe parties, it is ordered that all motions in tbe cause be continued, to be beard by tbe court at Monroe, N. C., in tbe Eighth Judicial District, on Thursday, 3 September, 1908.”
    It appears from tbe findings of Judge Long, recited in bis subsequent decree, that on account of high water prevailing in tbe district, by consent of tbe parties tbe cause was'again continued, to be beard on Wednesday, 9 September, 1908, in tbe Superior Court of Richmond County, in pursuance of tbe above-recited order, made at August Term of tbe Superior Court of Lee County. Tbe cause was beard at Rockingham, Richmond County, on the date agreed, by consent, all parties being present, at wbicb time Judge Long made an elaborate decree, reciting all prior orders and decrees in tbe cause and confirming tbe sale of tbe property, and directing title to be made, and distributing tbe proceeds of sale and applying tbe same in accordance with tbe original decree of sale made by Judge J ones. To tbis decree tbe defendants (creditors) excepted and appealed.
    
      Womack & Pace and Aycock & Winston for plaintiffs.
    
      A. A. F. Seawell and K. R. Hoyle for defendants.
    
      
      Clark, C. J., took no part in the determination of this case.
    
   Brown, J.

We think the exception to the ruling of bis Honor at August Term, 1908, refusing to open the case and permit answers to be filed traversing certain allegations of the complaint, and praying for affirmative relief, cannot be sustained. It was witbin the sound discretion of the judge below to open the case at tbat late day and set aside the sale and allow the answers to be filed, but bis discretion was exercised against the defendants and is not reviewable by us, certainly not when there is no evidence tbat sucb discretionary power bas been abused.

Tbe parties, having slept on their legal rights, forfeited them; and as they failed to convince tbe judge below tbat be should exercise bis discretion in their behalf, this Court cannot help them.

Tbe matter, we think, was practically disposed of .by us at tbe last term (ante, §8), when we held tbat tbe answers, having been filed in tbe papers in tbe case without authority of tbe court, and long after time for pleading bad expired, were properly ordered to be stricken from tbe official records.

It is contended by the defendants, in excepting to the decree of confirmation, tbat bis Honor bad no jurisdiction to render sucb decree after the term bad expired, and outside of the county of Lee. We would have no hesitation in bolding with the defendants but for the finding by the judge tbat all parties consented tbat the matter should be beard and determined while the judge was in the district, in Union County, and, the parties being unable to reach Union Court, by consent the matter was beard at Richmond Court and the decree of confirmation was then rendered. It is well settled tbat by consent of parties a judge of the Superior Court may bear sucb motions and enter judgments out of term and in another county than the one wherein the cause is pending. Bank v. Peregoy, 147 N. C., 296; Bynum v. Powe, 97 N. C., 374; Godwin v. Monds, 101 N. C., 354.

It is further contended tbat tbe court should have ordered another sale, as tbe original decree was rendered by J ones, J., in Richmond County, at chambers, and tbat sucb decree was void, ab initio. It is possible tbat tbe decree of 8 April, rendered outside of tbe county of Moore, where tbe cause was then pending, was of sucb a sweeping character as to constitute something more than a mere direction to a receiver to sell property, and tbat under Bank v. Peregoy, supra, tbe judge bad no jurisdiction to render it at chambers in Richmond County, except upon a consent bearing. But tbis decree was ratified • and adopted by tbe court in term time, in April, and again in May, in Moore County, before tbe cause was removed to Lee County. At tbe May Term tbe defendants bad been brought in and bad been made parties and were before tbe court, and took no 'exception to tbe decree tben rendered..

Tbis decree undertakes to .ratify and affirm tbe decree of 8 April, 1908, and also tbe detíree of April Term, not only as to tbe order of sale contained in tbe decree, but declares tbat said decrees “are in all things confirmed.” Having full and complete jurisdiction at May Term over all tbe parties, as well as tbe subject-matter of tbe action, Judge Jones adopted and again promulgated tbe decree be bad formally made in Richmond County. Tbis tbe judge bad tbe right to do, and tbe legal effect is tbe same as if be bad rewritten and again signed and entered tbe Richmond decree in iisdem terminis.

No answers were filed at tbat time, no issues raised, and there was no reason why tbe decree should not have tben been rendered. In tbis view of tbe case it is immaterial to consider whether tbe Richmond decree, of 8 April, was absolutely void or only voidable. It was in writing and spread on the minutes-of the court, and tbe decree of May Term gave it vitality by reference to it, as much so as if it bad been copied in tbe May decree. "Id cerium est quod cerium reddi potest J

This conclusion, at which we have arrived after a full investigation of tbe record, we think disposes of every assignment of error.

Tbe judgment of tbe Superior Court rendered by bis Honor, Judge Long, is

Affirmed.  