National Surety Corp. v. Sharpe

65 S.E.2d 137 (1951)

233 N.C. 644

NATIONAL SURETY CORP. et al. v. SHARPE et al.

No. 601.

Supreme Court of North Carolina.

May 23, 1951.

*138 Seawell & Seawell, Carthage, for O. B. Taylor, appellant.

W. D. Sabiston, Jr., Carthage and Carroll & Steele, Rockingham, for Receiver appellee.

BARNHILL, Justice.

As the property in controversy was in the possession of the receiver under order of court, a motion in the cause to recall the order of sale or to restrain the sale was the proper procedure. But the motion was made out of the county and out of the district without notice and before a judge who was neither the resident judge nor the judge riding the district. Said judge was without jurisdiction to hear a motion in a cause pending in Moore County. For this reason alone, if for no other, the restraining order was properly dissolved and vacated.

Furthermore, it is conceded here that pending this appeal the sale was had and the property was sold as ordered and advertised. The question the appellant now seeks to present is academic. Saunders v. Bulla, 232 N.C. 578, 61 S.E.2d 607. The motion of the receiver to dismiss the appeal must be allowed.

Appeal dismissed.