#### JOHN A. WEAVER et al. v. J. W. HAMPTON et al.

(Filed 25 January, 1933.)

1. Judgments B b — Clerk has jurisdiction to sign consent judgment in cause pending before referee.

The clerk of the Superior Court has ■ jurisdiction to sign a consent judgment in an action even while the action is pending before a referee. O. S., 593.

2. Reference A e — Order of reference does not destroy jurisdiction of COUX't.

An order of reference does not take the case from the jurisdiction of the court, the referee being merely an instrumentality of the court, and *43the court has jurisdiction to hear and determine all proper motions in the cause pending the reference which are not in conflict with the order of reference, including the signing of a consent judgment by the parties.

3. Judgments B a: Counties C a — County commissioners have authority to assent to consent judgment in proper instances.

Under the statutory authority of the county commissioners to make such contracts as may be necessary to the exercise of its proper powers, C. S., 1291, the commissioners have the authority to assent to the entry of a consent judgment in an action pending against the county, when such judgment is entered in good faith and is free from fraud, etc., a consent judgment being a contract of the parties spread upon the records with the approval and sanction of a court of competent jurisdiction.

Civil action-, before *Harris, J.,*at Special July Term, 1932, of Asi-ie.

Tbis case was considered on a former appeal reported in 201 N. C., at page 798, where the facts are set forth in detail. An examination of the facts discloses that this action was instituted to set aside the consent judgment rendered in the cause. Upon the former appeal it was adjudicated that plaintiff had stated a cause of action, and thereafter the cause was tried upon the following .issue: *“Was*the consent judgment rendered by the clerk of the Superior Court, dated 3 December, 1930, procured by fraud and collusion of the defendant, J. *W.*Hampton, and the board of commissioners of Ashe County, as alleged?” The jury answered the issue “No,” and from judgment upon the verdict the plaintiffs appealed.

*B. U. McNeill, Washington, D. 0., Bauguess & Prevette, Jefferson, N. G., and Lovill & Zimmerman, Boone, N. G., for plaintiffs.*

*B. A. Doughton, T. G. Bowie and Ira T. Johnston for defendants.*

BeogdeN, J.

The two primary questions of law presented by the record are:

1. Has the clerk of the Superior Court the power to sign a consent judgment in a cause duly instituted in the Superior Court, and at the time of such signing, pending before a referee appointed in an order of compulsory reference?

2. Does the board of county commissioners have the power to compromise a pending suit against the county, or to assent to the entry of a consent judgment terminating litigation against the county?

The evidence in the case is conflicting. Nevertheless, it discloses that a serious controversy existed between the parties. There was evidence that the referee had stated that it seemed desirable that the parties should compose their differences if possible. The jury has found that the *44consent judgment entered by tbe clerk- was not tainted by fraud or collusion, and consequently tbe power of tbe clerk to sign tbe judgment - immediately assumes paramount importance.

C. S., 593, expressly authorizes tbe clerks of Superior Courts to enter consent judgments at any time, and sucb judgments so entered become tbe judgments of tbe Superior Court. *Caldwell v. Caldwell,*189 N. C., 805, 128 S. E., 329. Tbis power is neither paralyzed nor destroyed by tbe fact that tbe cause is pending before a referee. A referee does not remove tbe cause of action from tbe Superior Court. It merely removes tbe procedure or method of determining tbe facts and tbe law of tbe case. Tbis idea was first expressed in *McNeill v. Lawton,*97 N. C., 16, 1 S. E., 493. Tbe Court said: “Tbe view suggested by counsel, that tbe consent reference in an action, as allowed by tbe statute, places tbe action pending tbe reference, or at all, beyond tbe control of tbe court, is unfounded. Tbe action is not referred — it continues pending in court, and all proper motions may be made in it, not inconsistent with tbe reference and course of procedure therein, as prescribed by tbe same' statute. . . . Tbe reference is for tbe trial of issues of fact or law, or both, accordingly as its terms may provide. Tbe jurisdiction is that of tbe court, not that of tbe referee; be, by tbe written consent of tbe parties, becomes a mere adjunct of, and acts in tbe place of tbe court, or of tbe court and jury, in respect to tbe trial. What be does is ancillary to tbe authority of the court in tbe action.” Of like tenor, is tbe declaration in *Jones v. Beaman,*117 N. C., 259, 23 S. E., 248, as follows: “Tbe court does not refer tbe action but retains it, pending tbe reference, with its power to make any necessary and proper order desired by tbe parties.” Therefore, it is concluded that tbe entry of tbe consent judgment was fully authorized by law.

Tbe delegated powers of a county are usually exercised by tbe board of county commissioners. O. S., 1291, expressly authorizes a county “to make sucb contracts ... as may be necessary to tbe exercise of its powers.” A consent judgment “is tbe contract of tbe parties spread upon tbe records with tbe approval and sanction of a court of competent jurisdiction,” etc. *Weaver v. Hampton,*201 N. C., 798. "While it has been held that county commissioners have no authority to release tbe sureties on tbe bond of a sheriff, it does not follow therefrom that a board of county commissioners has no power to settle a law suit pending against tbe county where sucb settlement is made in good faith and free of fraud, collusion or other vitiating element. Indeed, to withdraw sucb power from tbe governing board might frequently leave a county tied to a stake and exposed to tbe bruising lash of indefensible litigation. Tbe Circuit Court of Appeals for tbe Fourth Circuit in *Board of Commis*
      *45
      *sioners v. Tollman,*145 Fed., 753, recognized and sanctioned tbe right of county commissioners to compromise law suits. Tbe Court said: “Again, tbe power to sue and to defend suits carries witb it, by necessary implication, tbe power to make bona fide compromise adjustments of sucb suits.” It bas been generally recognized as a sound principle of law that counties are empowered to arbitrate controversies arising in tbe exercise of corporate powers. Tbe authorities are assembled in *West v. Coos County,*237 Pac., 961, 40 A. L. R., 1362, and annotation.

No error.