Russ v. Woodard

Annotate this Case

59 S.E.2d 351 (1950)

232 N.C. 36

RUSS v. WOODARD et al.

No. 449.

Supreme Court of North Carolina.

May 3, 1950.

*353 Simms & Simms, Bunn & Arendell, Raleigh, for appellants.

*354 Smith, Leach & Anderson, Raleigh, for appellees.

WINBORNE, Justice.

Where in a special proceeding instituted by a trustee for the purpose of resigning his trust, pursuant to the provisions of G.S. § 36-9 through G.S. § 36-12, an order, purporting (1) to accept the resignation of the trustee, and (2) to appoint a successor trustee, has been entered by the clerk of Superior Court, before whom the proceeding is pending, and after a hearing, but through misunderstanding with counsel for some of the parties as to time when the clerk would sign an order in this respect, and such order has not been approved by the judge of Superior Court, and the clerk recognizes such misunderstanding, and is of opinion that it would be to the best interest of all parties concerned that the order so entered be vacated, does the clerk have authority and power to vacate the order? This is the basic question on which decision on this appeal turns. And pertinent statutes in this State, and decisions of this Court afford an affirmative answer.

In this connection, it is appropriate to review the provisions of the statute, Article 3 of Chapter 36 of General Statutes of North Carolina, which vests clerks of Superior Courts with power and jurisdiction to accept the resignation of trustees, and to appoint their successors in the manner provided in this article. G.S. § 36-9. Upon the trustee filing in the office of the clerk of Superior Court of the county in which he qualified or in which the instrument under which he claims is registered in compliance with provisions of G. S. § 36-10, it is prescribed in G.S. § 36-11 that the clerk shall docket the cause as a special proceeding, with the fiduciary as plaintiff and the cestuis que trustent as defendants, and the procedure shall be the same as in other special proceedings. The cestuis que trustent, creditors and any person interested in the trust estate are given the right to answer the petition or traverse the same and to offer evidence why the prayer of the petition should not be granted. It is provided that the clerk shall then proceed to hear and determine the matter, and if it appears to the court that the best interests of the creditors and the cestuis que trustent demand that the resignation of the fiduciary be accepted, or if it appears to the court that sufficient reasons exist for allowing the resignation, and that the resignation can be allowed without prejudice to the rights of creditors or the cestuis que trustent, the clerk may, in the exercise of his discretion, allow the applicant to resign, "and in such case the clerk shall proceed to appoint the successor of the petitioner in the manner provided in this article". And it is provided in G.S. § 36-12 that if there be no appeal from the decision and order of the clerk within the time prescribed by law, the proceedings shall be submitted to the judge of the Superior Court and approved by him before same becomes effective. Moreover, it is provided in G.S. § 36-13 that any party in interest may appeal from the decision of the clerk to the judge at Chambers, and that in such case the procedure shall be the same as in other special proceedings as now provided by law. And it is also provided that if the clerk allows the resignation, and an appeal is taken from his decision, such appeal shall have the effect to stay the judgment and order of the clerk until the cause is heard and determined by the judge upon the appeal taken. And it is further provided in G.S. § 36-14 that upon appeal taken from the clerk to the judge, the judge shall have the power to review the facts or to take other evidence, and the facts found by the judge shall be final and conclusive upon any appeal to the Supreme Court. And there are other provisions of the statute pertaining to final accounting by trustee before resignation, G.S. § 36-15, as to resignation of trustee becoming effective on settlement by him with his successor, G.S. § 36-16, as to court appointing a successor, G.S. § 36-17, and as to the rights and duties devolving on the successor, G.S. § 36-18, which are not pertinent to questions involved on this appeal.

Thus it appears expressly that a proceeding by a trustee for the purpose of resigning his trust is denominated a special proceeding. The clerk is given jurisdiction of such proceedings. And the order of the clerk, in accepting the resignation of the *355 trustee, if no appeal be taken therefrom, is then subject to approval by the judge of Superior Court. "Approve" implies the exercise of discretion and judgment. Key v. Board of Education, 170 N.C. 123, 86 S.E. 1002; Harris v. Board of Education, 216 N.C. 147, 4 S.E.2d 328. Moreover, if an appeal be taken, the judge of Superior Court is given expressly the power to review the findings of fact made by the clerk and to find the facts or to take other evidence, and the facts found by the judge shall be final and conclusive on any appeal to Supreme Court. It follows, therefore, that in either event,no appeal therefrom or appeal therefrom,the order of the clerk of Superior Court is not a final judgment. It is an interlocutory order or judgment.

"A judgment", as declared in the chapter on Civil Procedure, G.S. § 1-208, "is either interlocutory or the final determination of the rights of the parties in the action". And the provisions of the chapter on Civil Procedure are applicable to special proceedings. G.S. § 1-391.

"A judgment is final which decides the case upon its merits, without any reservation for other and future directions of the court, so that it is not necessary to bring the case again before the court." Bunker v. Bunker, 140 N.C. 18, 52 S.E. 237; see also Flemming v. Roberts, 84 N.C. 532; Sanders v. May, 173 N.C. 47, 91 S.E. 526.

"An interlocutory order or judgment is provisional or preliminary, and does not determine the issues in the action but directs some further proceedings preliminary to final decree." McIntosh N. C. P & P, Section 614, page 686; Johnson v. Roberson, 171 N.C. 194, 88 S.E. 231.

An interlocutory order or judgment differs from a final judgment in that an interlocutory order or judgment is "subject to change by the court during the pendency of the action to meet the exigencies of the case". McIntosh N. C. P & P, Sec. 614, page 686. See also Shinn v. Smith, 79 N.C. 310; Miller v. Justice, 86 N.C. 26; Welch v. Kingsland, 89 N.C. 179.

Indeed, in the case of Hyman v. Edwards, 217 N.C. 342, 7 S.E.2d 700, 701, a special proceeding for the partition of land, it is held that all orders therein, other than decree of confirmation, are interlocutory, and that until the decree of confirmation is entered "the whole matter rests in the judgment of the clerk, subject to review by the Judge".

And while the decisions of this Court hold that the clerk of Superior Court is a court of very limited jurisdiction, such clerk does have such jurisdiction as is given by statute. McCauley v. McCauley, 122 N C. 288, 30 S.E. 344; Dixon v. Osborne 201 N.C. 489, 160 S.E. 579; Beaufort County v. Bishop, 216 N.C. 211, 4 S.E.2d 525; Keen v. Parker, 217 N.C. 378, 8 S.E.2d 209; Perry v. Bassenger, 219 N.C. 838, 15 S.E.2d 365; Moore v. Moore, 224 N.C. 552, 31 S.E.2d 690; McDaniel v. Leggett, 224 N.C. 806, 32 S.E.2d 602.

And in G.S. § 2-16 it is provided that "every clerk has power * * * (9) To open, vacate, modify, set aside, or enter as of a former time, decrees or orders of his court, in the same manner as courts of general jurisdiction".

Moreover, it may be noted that there are no terms or sessions of court for proceedings pending before clerk of Superior Court. Each case has its own return day. Hartsfield v. Bryan, 177 N.C. 166, 98 S.E. 379. And time for hearings may be fixed from time to time as the clerk may direct.

Applying these principles to case in hand, the clerk of Superior Court of Wake County has the power in his discretion to vacate the order of March 16, 1949, entered through misunderstanding as to the time he would take such action. Hence, the order of March 22, 1949, vacating the order of March 16, 1949, was within the power and discretion of the clerk.

And in the light of the decision here on the question first stated, the judgment from which appeal is brought to this Court appears to follow orderly procedure after the order of March 16, 1949, was vacated.

Finally, it is appropriate to note that hearing was thereafter had before the clerk and a full opportunity afforded all parties to present their respective contentions, and *356 it is not made to appear that in the order of May 2, 1949, appellants are prejudiced. The judge below, in the exercise of judgment and discretion, approved the order. And the judgment of approval is