The opinion
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
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consent 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
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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.