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Administration of Justice Bulletin N umber 2008/05 | november 2008
Out-of-Term, Out-of-Session, Out-of-County
Michael Crowell
For many jurisdictions the concept of a session or term of court is not as important as it is in North
Carolina with the state’s legacy of traveling superior court judges. In this state the commonly stated
rule, for both criminal and civil cases in both superior and district court, is that a judgment or order
affecting substantial rights may not be entered without the consent of the parties (1) after the session
of court has expired, or (2) while the judge is out of the county or district. Actually, there are
many instances when orders may be entered out-of-session and out-of-county, especially in civil
cases. This bulletin will attempt to describe those situations.
Meaning of “Session” and “Term”
In common parlance “term of court” and “session” sometimes are used interchangeably, but they
have distinct meanings. Under the rotation system for superior court judges mandated by article
IV, section 11 of the North Carolina Constitution (“The principle of rotating Superior Court
Judges among the various districts of a division is a salutary one and shall be observed”), judges
are assigned on six-month schedules. Thus in superior court the “use of ‘term’ has come to refer
to the typical six-month assignment of superior court judges, and ‘session’ to the typical one-week
assignment within the term.” Capital Outdoor Advertising v. City of Raleigh, 337 N.C. 150, 154, 446
S.E.2d 289, 292, n.1, 2 (1994). See Beaufort County Board of Education v. Beaufort County Board of
Commissioners, N.C. , 656 S.E.2d 296, disc. review allowed, 661 S.E.2d 239 (2008); State
v. Trent, 359 N.C. 583, 614 S.E.2d 498 (2005). In district court there is nothing comparable to the
six-month term of superior court judges because district judges do not travel. As to a session of
court, the common practice is for chief district judges, acting under the authority of North Carolina
General Statutes 7A‑146(1) (hereinafter G.S.), to assign district judges by the day, and therefore a day
of district court is considered a session. A chief district judge also may assign a specific case to a
judge, and the hearing of that single case, however long it lasts, constitutes a session as well. Routh v.
Weaver, 67 N.C. App. 426, 313 S.E.2d 793 (1984).
Michael Crowell is Professor of Public Law and Government at the School of Government specializing in the law of
judicial administration.
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In Vacation or In Chambers Jurisdiction
This bulletin generally is about the entry of an order after a matter has been heard in a regularly
scheduled session of court. Sometimes, however, the hearing itself may take place out-of-session
and out-of-county, and the issue to consider is not only the validity of the order but the validity of
the entire proceeding. For that reason it will be useful to review briefly when a judge may hear a
matter outside a scheduled session of court.1
Most questions about a superior court judge’s authority to hear matters outside a regular
courtroom session are answered by G.S. 7A‑47.1. The statute defines the judge’s jurisdiction to
hear matters “in vacation”—that is, when there is no session of court scheduled—also referred to
as “in chambers” jurisdiction. Generally any nonjury matter arising in the district may be heard in
vacation, and it may be heard by either the judge currently assigned to the district, a resident judge
of the district, or a special superior court judge who resides in the district. Scott v. Scott, 259 N.C.
642, 131 S.E.2d 478 (1963); Patterson v. Patterson, 230 N.C. 481, 484, 53 S.E.2d 658 (1949). The
resident judge, or special judge who resides in the district, need not be currently assigned to the
district to exercise in chambers jurisdiction.
The general “vacation” or “in chambers” jurisdiction of a regular judge arises out of
his general authority. Usually it may be exercised anywhere in the district and is never
dependent upon and does not arise out of the fact that he is at the time presiding over a
designated term of court or in a particular county. As to him, it is limited, ordinarily, to
the district to which he is assigned by statute.
Baker v. Varser, 239 N.C. 180, 188, 79 S.E.2d 757 (1954) (quoting Shepard v. Leonard, 223 N.C. 110,
25 S.E.2d 445 (1943)).
A judge’s exercise of in chambers jurisdiction does not require the parties’ consent. E.B. Grain
Co. v. Denton, 73 N.C. App. 14, 325 S.E.2d 522 (1985); Towne v. Cope, 32 N.C. App. 660, 233
S.E.2d 624 (1977).
It appears that a superior court judge hearing an in chambers matter in a criminal case must
be in the county in which the matter arose, unless the parties agree to being heard outside the
county, but that a civil in chambers matter may be heard in any county within the district. In
House of Style Furniture Corporation v. Scronce, 33 N.C. App. 365, 235 S.E.2d 258 (1977), the
resident judge of the Twenty-Second Judicial District, which included both Iredell and Alexander
counties, heard in chambers in Statesville (Iredell County) a motion to dismiss an Alexander
County case. The court of appeals voided the order because the hearing was conducted outside the
county even though it was within the district.
Even as to regular judges, “it is the uniform holding in this jurisdiction that, except by
consent, or unless authorized by statute, a judge of the Superior Court even in his own
district, has no authority to hear a cause or to make an order substantially affecting the
rights of the parties, outside the county in which the action is pending.”
33 N.C. App. at 369 (quoting Shepard v. Leonard, 223 N.C. 110, 114, 25 S.E.2d 445, 448 (1943)).
Also see Patterson v. Patterson, supra, 230 N.C. at 484 (under G.S. 7A‑47.1 “the resident judge of
1. N.C. Gen. Stat. § 7A‑49.2 delineates when civil motions may be heard during criminal sessions of superior court
and vice versa. The statute allows motions in civil cases to be heard during criminal sessions, and it authorizes civil
trials during criminal sessions with consent of the parties. The statute prohibits hearing criminal matters during a civil
session. In re Renfrow, 248 N.C. 55, 100 S.E.2d 315 (1957); Whedbee v. Powell, 41 N.C. App. 250, 254 S.E.2d 645 (1979).
A judge assigned to a civil session still would have in chambers jurisdiction to hear criminal nonjury matters, however.
Out-of-Term, Out-of-Session, Out-of-County 3
the judicial district has concurrent jurisdiction with the judge holding the courts of the district” in
nonjury matters, but the resident judge’s actions were void in this instance because he was out of
the district when he heard the matter and entered the order).
In 2005 the General Assembly rewrote Rule 7(b)(4) of the Rules of Civil Procedure to provide
that a motion in a civil case may be heard in any county in the district. The rule appears to apply
regardless of whether the motion is being heard during a regular session or in chambers. There is
no comparable rule or statute for criminal cases, however, so it seems that an in chambers motion
in a criminal case must be heard in the county in which the case arose, unless the parties agree
otherwise.
A district court judge’s jurisdiction to hear matters in chambers is limited by G.S. 7A-192.
Under that statute a district judge may hear matters in chambers only if designated to do so by
the chief district judge. The designation must be filed with the clerk of court for each county in
the district and remains in effect until revoked by written order. An order entered in chambers
without such designation is void. Stroupe v. Stroupe, 301 N.C. 656, 273 S.E.2d 434 (1981); Austin v.
Austin, 12 N.C. App. 286, 183 S.E.2d 420 (1971).
Extension of a Session
Sometimes a potential out-of-session problem may be avoided by the extension of the session.
G.S. 15‑167 authorizes a superior court judge to extend a criminal session if a trial cannot be completed
by the end of the day Friday; it also authorizes extension of sessions for civil cases except
when the trial of a civil case began after Thursday of the last week of the civil session. Although
the statute provides for an order extending a session to be entered in the record, the extension
will be upheld if it is announced in open court and there is no objection from the parties. State v.
Locklear, 174 N.C. App. 547, 621 S.E.2d 254 (2005). There is no comparable statute for extensions
of sessions in district court, but the authority of the judge to do so when necessary to complete a
trial seems to be the accepted practice.
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Statement of the Out-of-Session, Out-of-County Rule
The North Carolina Supreme Court’s statement of the out-of-session, out-of-county rule in State v.
Boone, 310 N.C. 284, 187, 311 S.E.2d 552 (1984) is typical:
“[J]udgments and orders substantially affecting the rights of parties to a cause pending
in the Superior Court at a term must be made in the county and at the term when
and where the question is presented, and our decisions on the subject are to the effect
that, except by agreement of the parties or some express provision of law, they cannot
be entered otherwise, and assuredly not in another district and without notice to the
parties interested.” State v. Humphrey, 186 N.C. 533, 535, 120 S.E. 85, 87 (1923). In prior
2. A short continuance of a criminal trial from one session to another to allow completion does not put the defendant
in double jeopardy. State v. Carter, 289 N.C. 35, 220 S.E.2d 313 (1975), vacated on other grounds, 428 U.S. 904
(1976). Double jeopardy may arise, however, if following the continuance the next proceeding is treated as a new trial
with the defendant entering a plea again. State v. Coats, 17 N.C. App. 407, 194 S.E.2d 366 (1973).
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and subsequent cases, this rule has been stated in various forms, and it has been consistently
applied in both criminal and civil cases.
Several keys to the rule are covered in that quote. First, of course, the parties may consent to a
decision out-of-session or out-of-county, and judges routinely ask for consent when taking a matter
under advisement. Second, the rule only applies when the order substantially affects the rights
of the parties; other orders may be entered out-of-session and out-of-county. Third, some other
provision of law may authorize an action out-of-session and out-of-county. The legislature has
done so in various circumstances, particularly in civil cases.
Out-of-Session Orders in Criminal Cases
The North Carolina Supreme Court most recently affirmed its commitment to the out-of-session
rule in criminal cases in State v. Trent, 359 N.C. 583, 585, 614 S.E.2d 498, 499 (2005):
Furthermore, this court has held that “an order of the superior court, in a criminal case,
must be entered during the term, during the session, in the county and in the judicial
district where the hearing was held.” State v. Boone, 310 N.C. 284, 287, 311 S.E.2d 552,
555 (1984). Absent consent of the parties, an order in violation of these requirements is
null and void and without legal effect. Id.
Although the language in Trent is strong, the case itself involved circumstances that were unusual
and will not be repeated often.
In Trent the defendant, charged with armed robbery, moved to suppress a victim’s identification
of him as well as the defendant’s own incriminating statements. The hearing on the motions to
suppress was heard in October, then continued until January. At the end of the January hearing, the
judge said he was taking the motions under advisement. No order was entered during the remainder
of that term of court which ended on June 30. When the trial opened in August the judge announced
that the motions to suppress were denied. The Supreme Court held that the decision to suppress was
void because it was rendered after the session and term of court had expired without the defendant’s
consent. The court rejected the argument that the defendant had consented to the out-of-session
order by not objecting when the judge said he was taking the matter under advisement.3
Note that Trent is really an out-of-term case rather than an out-of-session decision. If, after
hearing the motion in January, the judge had entered the order before his six-month term expired
at the end of June, the in chambers jurisdiction of G.S. 7A‑47.1 might have been applied to uphold
the order.4
3. The Trent majority opinion prompted a strong dissent which argued, “The out-of-term, out-of-session rule is now
out of date.” The dissent asserted that historical factors which led to the rule no longer existed. The rule was justified
in the past when judges rode circuit on horseback and held court in a district only a few days a year. Because it might
be months before a judge returned to a specific court, it was necessary for the judge to act before the session ended.
The dissent also said that crowded dockets now require judges to continue cases from one term or session to the next
and that requiring the court to obtain and record all parties’ consent would put the trial courts at the mercy of the
parties. The dissent argued that, at a minimum, a party should be required to object during the session to the holding
of an order for later action and should be required to show prejudice from the delay.
4. Capital Outdoor Advertising, Inc., v. City of Raleigh, discussed on page 7 and decided eleven years before
Trent, relied upon the in chambers jurisdiction of G.S. 7A‑47.1 to sustain an order entered in a civil case the week after
the session expired but still within the six-month term of the judge’s assignment to that district. Trent emphasizes that.
Out-of-Term, Out-of-Session, Out-of-County 5
Trent discusses two earlier cases to further explain when an order may be entered after a session
has expired. An order may be entered after a session has expired if the ruling was announced
in open court during the session. That is the holding in State v. Horner, 310 N.C. 274, 311 S.E.2d
281 (1984). By contrast, in State v. Boone, quoted above and decided on the same day as Horner,
the trial judge had not announced the decision during the session, and the Supreme Court
declared void the judge’s order denying a motion to suppress because the order was signed outof-
session and while the judge was out of the district. Moreover, the court in Boone held that the
defendant did not have to object to the procedure and did not have to show that he was prejudiced
by the entry of the out-of-session order.
The Boone court further explained the purpose of the rule and the procedure that should be followed
when issuing a judgment or order affecting substantial rights:
Although we realize that there are situations where it would be more convenient for a
judge to mail his ruling to the clerk, and then allow the clerk to notify the respective
parties of the judge’s decision, we are convinced that the better practice, in criminal
cases, is for the judge to announce his rulings in open court and direct the clerk to note
the ruling in the minutes of the court. When the judge’s ruling is not announced in
open court, the order or judgment containing the ruling must be signed and filed with
the clerk in the county, in the district and during the session when and where the question
is presented. These rules serve to protect the interests of the defendant, the State,
and the public, by allowing all interested persons to be informed as to when a judgment
or order has been rendered in a particular matter. Since many rights relating to the
appeals process are “keyed” to the time of “entry of judgment,” it is imperative that
the judge’s decisions become part of the court’s records and that all interested persons
know the exact date on which judgment is entered.
310 N.C. at 290–91.
The Sentencing Exception
The out-of-session rule does not apply to sentencing. “A trial court is authorized to continue the
case to subsequent date for sentencing.” State v. Degree, 110 N.C. App. 638, 640, 430 S.E.2d 491,
493 (1993). “This procedure . . . is an exception to the general rule that the court’s jurisdiction
expires with the expiration of the session of court in which the matter is adjudicated.” Id. at 641,
430 S.E.2d at 493. The continuance for sentencing, most commonly referred to as a prayer for
judgment continued, may be for a definite or indefinite period of time, provided that the sentence
is entered within a reasonable time after the conviction or guilty plea. Although such a continuance
is recognized in G.S. 15A‑1334(a), the authority to delay sentencing predates the statute and
is considered the trial court’s “inherent power to designate the manner by which its judgments
shall be executed.” State v. Lea, 156 N.C. App. 178, 180, 576 S.E.2d 131, 132 (2003).
the order was entered well after the term had expired and does not discuss the effect of G.S. 7A‑47.1 or the holding
in Capital Outdoor Advertising. There was no reason to discuss Capital Outdoor Advertising, of course, since
no argument could be made about in chambers jurisdiction once the term ended. It would seem that in chambers
jurisdiction might have been applied to uphold the out-of-session order in State v. Boone, where the order was entered
out-of-session and out-of-county but still several days before the term expired at the end of June. Boone was decided ten
years before Capital Outdoor Advertising and its construction of G.S. 7A‑47.1, however, and the opinion muddles the
distinction between a session and a term of superior court.
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“Deciding whether sentence has been entered within a ‘reasonable time’ requires consideration
of the reason for the delay, the length of the delay, whether defendant has consented to the delay,
and any actual prejudice to defendant which results from the delay.” State v. Degree, 110 N.C. App.
at 641. In Degree the court found a sixty-day delay reasonable, based largely on the defendant’s
failure to request entry of judgment. In State v. Lea, quoted above, the court of appeals upheld a
five-year delay in sentencing under unusual circumstances. After the defendant was convicted of
attempted second-degree murder and several assaults, sentencing was withheld on the assaults
while he appealed whether there was such a crime as attempted second-degree murder. Following
the North Carolina Supreme Court’s decision in another case that there was no crime of attempted
second-degree murder, the Lea defendant moved for appropriate relief on that charge. The court
then sentenced him on the assaults. As in Degree the appellate court noted that the defendant had
not objected to the continuation nor requested that judgment be entered; neither was there any
evidence that the delay affected his ability to present evidence on the sentencing for assault.
When deciding whether a trial court may delay action on a sentence to a later session, it is
important to remember that there is a distinction between cases in which prayer for judgment is
continued with conditions and cases in which the continuance is without conditions. If conditions
are imposed (e.g., prayer for judgment is continued for one year upon payment of a fine and costs
and good behavior) and the defendant meets the conditions, the court may not impose a different
sentence at a later time. State v. Absher, 335 N.C. 155, 436 S.E.2d 365 (1993). Conditions amounting
to punishment turn a prayer for judgment continued into a final judgment, subject to no further
action by the trial court; conditions that do not amount to punishment leave the door open
for imposition of additional sanctions by the trial court. A condition that the defendant “obey the
law” or pay the costs of court is not a condition amounting to punishment, but imprisonment or
payment of a fine, or a condition that the defendant continue psychiatric treatment, is a punishment
which makes the sentence final and bars the trial court from acting further. State v. Brown,
110 N.C. App. 658, 430 S.E.2d 433 (1993).
Subsection (c) of G.S. 15A‑1334, the sentencing statute, specifically authorizes a judge who
orders a pre-sentence report to direct that the sentencing hearing be before the same judge in
another county or district at a later session. State v. Fuller, 48 N.C. App. 418, 268 S.E.2d 879,
review denied, 301 N.C. 403 (1980).
Other Actions Out-of-Session in Criminal Cases
In addition to sentencing, there are other situations in which statutes specifically authorize a judge
to act on a criminal case after a session has ended. G.S. 17‑6 specifies that an application for a writ of
habeas corpus may be made to any appellate judge or any superior court judge “either in session or in
vacation.”5 A motion for appropriate relief under G.S. 15A‑1414 may be made within ten days after
an entry of judgment, which usually would be after the end of the session in which the judgment
was entered, and G.S. 15A‑1413 states that it may be heard by the judge who presided at the trial
even if that judge is assigned to another district at the time or the judge’s commission has expired.
5. Rule 25(5) of the General Rules of Practice for the Superior and District Courts requires that when the application
for habeas corpus in a capital case raises a meritorious challenge (other than the jurisdiction of the sentencing
court) the judge who receives the application is to refer it to the senior resident superior court judge for the district
where the defendant was sentenced.
Out-of-Term, Out-of-Session, Out-of-County 7
Civil Cases
The import of the out-of-session rule in civil cases has been diminished significantly by the
North Carolina Supreme Court’s construction of G.S. 7A‑47.1 and Rule 6(c) of the Rules of Civil
Procedure in Capital Outdoor Advertising, Inc., v. City of Raleigh, 337 N.C. 150, 446 S.E.2d 289
(1994), and by the subsequent revision of Rule 58. In Capital Outdoor Advertising the trial judge
had been assigned to Wake County. He heard a motion to dismiss on Tuesday, but waited until
the following Monday to rule. Although the judge still was in Wake County, the one-week session
of court at which the motion was heard had expired on Friday and he had begun a new session
at the time of his ruling. The court of appeals upheld his order of dismissal, however, concluding
that G.S. 7A‑47.1 and Rule 6(c) authorize a judge to decide a matter and sign an order in a civil
case after the session has concluded, provided that the hearing was held in session. When acting
pursuant to that statute or rule, a judge does not need the parties’ consent.
G.S. 7A‑47.1, the statute on in vacation jurisdiction, was discussed above. Rule 6(c) is broader
than the statute and provides:
The period of time provided for the doing of any act or the taking of any proceeding
is not limited by the continued existence or expiration of a session of court. The continued
existence or expiration of a session of court in no way affects the power of a court
to do any act or take any proceeding, but no issue of fact shall be submitted to a jury
out of session.
Not long after the Capital Outdoor Advertising decision an amendment to Rule 58 of the Rules
of Civil Procedure went into effect, stating: “Subject to the provisions of Rule 7(b)(4) [the rule
allowing a motion in superior court to be heard in any county in the district] consent for the
signing and entry of a judgment out of term, session, county, and district shall be deemed to have
been given unless an express objection to such action was made on the record prior to the end
of the term or session at which the matter was heard.” Taken together, G.S. 7A‑47.1, Rule 6(c), and
Rule 58 effectively eliminate questions about a judge entering an order in a civil case after a session
has expired, so long as the hearing was held during the session. A party who wants to contest the
jurisdiction of the court to act after the session expires must object on the record before the session
is over.
A district court judge has the same authority as a superior court judge to enter an order and
judgment after a session has ended, provided that the trial on the merits was conducted at a regularly
scheduled session. Ward v. Ward, 116 N.C. App. 643, 448 S.E.2d 862 (1994).
Clarification of Order Entered during Session
In Minton v. Lowe’s Food Stores, Inc., 121 N.C. App. 675, 468 S.E.2d 513 (1996), the court of appeals
held that Rule 6(c) allows a hearing out of the county and after the end of the session when the
original hearing was conducted during a regularly scheduled session and the subsequent hearing
is only for the purpose of clarifying or filling out the original decision. The judge in Minton, a case
heard in Caldwell County, decided that the plaintiff was to pay costs. Later, when a question arose
about costs that were not originally taxed by the clerk, a hearing was held before the same judge,
but by that time he was holding a session of criminal court in McDowell County. Nevertheless,
the court of appeals ruled the order on additional costs was valid under Rule 6(c), regardless of the
parties’ consent, because the initial substantive order awarding costs had been entered in session
8 UNC School of Government Administration of Justice Bulletin
in Caldwell County and this subsequent order, entered out-of-session and out-of-county, was
merely “perfunctory” in assessing those costs.
Out-of-District and Out-of-County
A hearing in a criminal case must be in the county in which the action arose unless the parties
agree otherwise, and in a civil case it must be within the district. As discussed above under
“In Vacation or In Chambers Jurisdiction,” the court of appeals in House of Style Furniture
Corporation voided an order entered by a resident superior court judge because he heard the
motion outside the county in which the lawsuit arose. The judge had in chambers jurisdiction to
hear the motion to dismiss because the case was from his district, but without the parties’ agreement
he could not conduct the hearing in a different county than where the lawsuit was filed. The
legislature subsequently rewrote the Rules of Civil Procedure to allow a motion in a civil case to be
heard in any county in the district, but no comparable change was made for motions in criminal
cases.
A more difficult question is whether a judge’s signing of an order while out of the county or
district makes it void even though the hearing was properly held within the county or district
and was held in session or pursuant to in chambers jurisdiction. Much of the case law which
speaks about out-of-district and out-of-county orders is not particularly helpful because typically
the hearing itself was out of the county or district or the order was entered out-of-session, and
those are the facts which really controlled the courts’ decisions. The most recent North Carolina
Supreme Court discussion about signing orders out-of-district and out-of-county came in the
State v. Horner and State v. Boone decisions, discussed above.
In Horner the North Carolina Supreme Court upheld the out-of-session order because the
decision had been announced in open court during the session. At the same time the court
sidestepped the argument that the order was entered out-of-district, saying that, first, if “entered”
meant “filed” the order had been entered in the correct county, and, second, that if “entered”
meant “signed” there was no evidence as to where the judge was physically located when he signed
the order. The court then went on to say that “these technicalities” were not determinative.
The questioned order in Boone also was signed out-of-session, but it had not been announced
during the session and thus was void. The record in Boone showed that the judge was in another
county and district when he signed and mailed the order to the clerk of court for the correct
county. As support for its decision voiding the order, the Supreme Court emphasized that an order
cannot be “entered” until it is received and recorded by the clerk. If a judgment or decision is
announced in open court, it is considered entered as soon as the clerk records the decision in the
court minutes. If, on the other hand, the judgment or decision is rendered later by the judge, it is
not considered entered until received and recorded by the clerk. In Boone, therefore, the order was
not entered until the copy mailed by the judge was received by the clerk several days later, clearly
well after the session of court had expired.
Based on Horner and Boone it does not appear that the physical location of the judge when
signing the order is likely to determine its validity. No matter when and where the order is signed,
it is not entered until received and recorded by the clerk, which is the more important event.
Nevertheless, given the lack of clarity in the law about the significance of where the order is
signed, the better practice is for a judge to sign an order in the district or county where a matter
arose and was heard or to have the parties consent to the signing at a different location.
Out-of-Term, Out-of-Session, Out-of-County 9
Ex Parte Show Cause Orders
As stated earlier, the out-of-session rule applies only when the order substantially affects the rights
of the parties. The North Carolina Supreme Court has held that a show cause order does not
substantially affect the party’s rights and, consequently, a resident superior court judge may issue a
show cause order ex parte for the judge’s home district even when the judge is assigned and holding
court out of the district.
The out-of-district issue for a show cause order first arose in In re License of Delk, 103 N.C. App.
659, 406 S.E.2d 601 (1991), when a superior court judge who was neither a resident of nor assigned
to the district ordered a lawyer to appear in Graham County on May 25, 1990, to show cause why
he should not be disbarred. The judge who issued the order had presided over the trial in Graham
County the previous year when the lawyer was convicted of extortion, but she had not imposed
any discipline at that time and was not assigned to the district when she issued the show cause
order. The court of appeals held that the judge acted without jurisdiction and the order was void,
even though on May 1, 1990, two days before the show cause order was issued, the chief justice
had given the judge a commission to hold a special session in Graham County starting May 25.
The crucial fact for the court of appeals was that the judge was not assigned to Graham County
at the time of issuing the show cause order, although she already had been assigned to be there
for the May 25 session.
Following that court of appeals decision, the senior resident judge for Graham County ordered
the lawyer to appear in the county to show why he should not be disciplined. At the time the
resident judge issued the order, however, he was assigned to and holding court in Mecklenburg
County. He then recused himself, and the hearing was held by another judge who disbarred the
lawyer. The North Carolina Supreme Court in In re License of Delk, 336 N.C. 543, 444 S.E.2d 198
(1994), rejected the argument that the new show cause order was void because the judge could not
act while outside the county in which the matter was pending. The court held that a show cause
order does not substantially affect the rights of a party and, therefore, is not subject to the general
rule about a judge acting out-of-district. So long as the decision on discipline was to be decided in
Graham County, it did not matter where the show cause order was issued.
The Supreme Court stated explicitly in In re Delk that its decision did not depend on the show
cause order being issued by the senior resident judge of the district. Unless the judge’s residency
in the district matters, however, it is difficult to reconcile the Supreme Court’s decision with the
court of appeals’ earlier holding tossing out the show cause order issued by the nonresident judge.
Remands
In Andrews v. Peters, 89 N.C. App. 315, 365 S.E.2d 709 (1988), a personal injury case, the trial
court ordered a new trial on damages after a jury awarded the plaintiff damages of only $7,500.
The court of appeals vacated the order for a new trial and remanded the case to the trial court to
enter findings of fact sufficient to allow meaningful appellate review. The original trial judge did
so, but the defendant then complained that the judge did not have jurisdiction to enter the findings
because he was not the resident judge of the district and at the time of remand he was not
assigned there. The court of appeals rejected the argument, ruling that the remand was only to
enter findings for the original order; no other judge could have done so, and it did not make sense
to say that the judge could not comply with the remand until reassigned to the district.
10 UNC School of Government Administration of Justice Bulletin
The Need for a Commission
When a judge is required to act in session, the crucial question to consider is whether the judge
has been properly assigned to that session—not whether a commission has been issued. The commission
is evidence of the assignment, but a proper assignment may occur even if there is a defect
in the issuance of the commission.
In State v. Eley, 326 N.C. 759, 392 S.E.2d 394 (1990), the defendant’s murder conviction was
challenged on the ground that the presiding superior court judge had not been assigned by the
chief justice to preside over that session of court. A commission had been issued for a special session
for jury voir dire but not for a trial session because no one knew how long the voir dire would
take. When the voir dire was completed, the judge reported to the chief justice’s administrative
assistant who testified that he then followed his normal procedure, marking the new session on
his master calendar and issuing a commission. The commission was never received, however.
When, some months later, the error was discovered, a new commission was issued nunc pro tunc,
dated back to the date of the trial.
The Supreme Court held in Eley that the judge had been assigned to the session, that the issuance
of a commission is not essential to a proper assignment, and that the nunc pro tunc order
could be issued to properly record the commission that inadvertently had not been entered in the
court record.
The court made several broad pronouncements about commissions in Eley, including the statement
that the trial judge’s “jurisdiction, power, and authority as a superior court judge flowed
from the Constitution of North Carolina and his appointment and commission by the Governor
as a superior court judge,” and that a commission from the chief justice to hold a session of court
does not grant jurisdiction but “merely manifests that such judge has been duly assigned pursuant
to our Constitution to preside over such session of court.” 326 N.C. at 764, 392 S.E.2d at 397. In
relying upon Eley, however, it is important to note that there was strong and uncontested evidence
about the assignment of the trial judge and the routine issuance of the commission, even though
it was not received. Therefore, it is recommended to be cautious about relying on the more general
proposition that jurisdiction is conferred by the constitution regardless of the issuance of a commission.
As any number of the other cases cited in this bulletin establish, when a judge is required
to act in session, the judge has to be properly assigned to that session, and the commission is the
strongest evidence of the assignment.
Consent
When the parties’ agreement is required to hear or decide a matter out-of-session or out-ofdistrict,
“the consent must appear on the face of the record.” Patterson v. Patterson, 230 N.C.
481, 484, 53 S.E.2d 658, 661 (1949). A party consents by appearing in a hearing out of the county
and not objecting to the judge’s authority. Griffin v. Griffin, 237 N.C. 404, 75 S.E.2d 133 (1953).
Consent is not to be implied, however, from a party’s submission of a proposed order to the judge,
at the judge’s request, after a session has concluded. Turner v. Hatchett, 104 N.C. App. 487, 409
S.E.2d 747 (1991).
Out-of-Term, Out-of-Session, Out-of-County 11
Parties Cannot Grant Jurisdiction
Jurisdiction may not be conferred by consent. Thus the parties cannot give a judge authority
to hear a matter that has been filed in a county outside the district in which the judge resides
or to which the judge is assigned. In Vance Construction Company, Inc., v. Duane White Land
Corporation, 127 N.C. App. 493, 490 S.E.2d 588 (1997), a dispute arose over construction of a
boat storage facility in Warren County. The judge who first heard the case was from Edgecombe
County, assigned for that term to Warren County. After the trial the parties entered a consent
order concerning payment of damages and costs. When a disagreement arose about the consent
order, it was heard by agreement of the parties before the same judge, this time in Edgecombe
County. Because the judge was assigned at that time to a term in Edgecombe County, resided
there, and was not assigned to Warren County, the court of appeals held the parties could not
consent to his hearing the motion; his ruling on that matter was void. Without being a resident
judge for Warren County, and lacking a commission to hold court there, the judge was without
jurisdiction for the Warren County matter. The parties could not confer jurisdiction by agreement.
Summary
The out-of-session, out-of-district rule is not very important anymore for civil cases, but it still can
be a trap for an unsuspecting judge in criminal cases. In civil cases a judge may decide a matter
and enter an order after the session has expired and while the judge is out of the district, provided
that the hearing was held during the session. The parties’ consent is not needed, but a party
can stop the judge from acting out-of-session or out-of-district by objecting before the session
concludes.
For criminal cases, though, there is no rule implying that the parties have consented to an order
being entered out-of-session and out-of-district. By case law, if a judge announced a ruling during
session, there is no legal problem with submitting the ruling to writing later. Also, sentencing may
be delayed until after the session without creating a legal problem. For other situations, however,
the parties must consent to a judge acting after the session has ended. Thus, when a judge wishes
to take a matter under advisement and is not likely to decide during that session of court (that
week for superior court and that day for district court), the judge should be sure that the record
shows the consent of the prosecutor and defense to act out-of-session and, for superior court, outof-
district. When that is not done, the superior court judge sometimes still can rely on in chambers
jurisdiction to act, if the judge is resident in the district or still assigned there.
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School of Government. The University of North Carolina at Chapel Hill