Mcneill v. Hodges

• Decision Date: 16 April 1888
• Court: North Carolina Supreme Court
• Parties: McNeill et al. v. Hodges et al.

6 S.E. 127

(99 N.C. 248)

McNeill et al.

v.Hodges et al.

Supreme Court of North Carolina.

April 16, 1888.

Reference—Report—Review in County Other than Where Action Brought.

Under Code N. C. § 423, which, with regard to referee's reports, enacts that "either party during the term, or upon 10 days' notice to the adverse party out of term, may move the judge to review sach report, and set aside, modify, or confirm same, in whole or in part, "—a plaintiff cannot have such report reviewed, etc., in a county other than that in which the action is pending.

Appeal from superior court, Cumberland county; Clark, Judge.

T. A. McNeill, one of the plaintiffs in this action, obtained a judgment against I. P. Hodges, one of the defendants therein, confirming a referee's report in a county other than that in which the action was pending. Defendant I. P. Hodges appeals.

2V. W. Kay, for appellant,

I. P. Hodges. Battle & Merdecai, for appellee, T. A. McNeill.

Merrimon, J. This action is pending in the superior court of the county of Cumberland. In the course of the action there was a reference, and the referee made his report to the clerk of the superior court. Thereupon the plaintiff afterwards served 10 days' notice on the defendant Hodges to appear at chambers, in Rockingham, Richmond county, on the 7th of June; and the defendant Hodges, by his counsel, appeared accordingly, and insisted to the court that it was irregular, and not according to law, and contrary to the practice of the court, to require a defendant to come out of his own county to Richmond county to try a case that was regularly on the docket of Cumberland county, and asked that the case be continued until the next regular term of Cumberland county. This was overruled, and defendant Hodges excepted. The court then proceeded to hear the exceptions to the account as filed by defendant Hodges, and also exceptions filed by defendant W. J. Smith, and to give judgment for the appellee, from which the defendant appealed to this court.

Regularly, an action must be considered, tried, and disposed of not only in the court, but as well in the county, where it is pending. The several stat-utes prescribing and regulating the jurisdiction of the courts, the method of procedure and practice, so in effect provide, except in particular cases and respects specialty provided for, such as the granting of injunctions pending the action until the hearing upon the merits, the appointment of receivers, and the like. Bynum v. Powe, 97 N. C. 374, 2 S. E. Rep. 170. Such special exercise of authority is exceptionable, and should not be extended by mere implication or possible inference. An important and valuable part of the purpose of establishing courts in every county is to promote the fairness of trials, the convenience of parties, and to economise time, costs, and personal expenses; although in some cases, and in some aspects of cases, parties are to be taken from their...