concurring: This appeal presents two primary questions. 1. Does a purchaser at a judicial sale by a commissioner ap*104pointed by the clerk of the Superior Court in a special proceedings to sell land to make assets, by virtue of his relationship, become a party to the proceeding so as to subject him to the further orders of the court in the cause ? 2. If so, does the judge of the Superior Court have jurisdiction, on motion and notice, to issue a restraining order in a special proceedings, pending before the clerk, to sell land to make assets ?
The majority opinion answers in the affirmative. I concur. In so doing I desire to discuss the second question, which is one of procedure important to the legal profession.
We have but one Superior Court, which is a court of general jurisdiction. The jurisdiction conferred on this court by the Legislature under authority of the Constitution (N. C. Const., Art. IY, sec. 12), is apportioned in part to the clerk of the Superior Court, in part to the judge in chambers and in part to the judge at term.
The clerk is charged with the exercise of important judicial powers (O. S., ch. 13), in the exercise of which he represents and acts as and for the court. His action is the action of the Superior Court. The court exercises its power through him, subject to the supervision and control of his action by the judge provided by law. That is, certain of the court’s powers, specified by statute, are exercised by the clerk and his action, when taken, stands and prevails unless modified or set aside by the judge in the manner prescribed by statute. Brittain v. Mull, 91 N. C., 498.
Whenever the term “Superior Court” or “Court” is used in statutes relating to jurisdiction of the Superior Court it means clerk of the Superior Court unless otherwise specially stated, or unless reference is made to a term of court. C. S., 397. Likewise, jurisdiction to hear and decide all questions of practice and procedure and all other matters over which jurisdiction is given to the Superior Court is vested in the clerk unless the judge of the court or the court at term is expressly referred to. C. S., 403.
Whenever the clerk exceeds his jurisdiction and acts without authority, Hodges v. Lipscomb, 133 N. C., 199, or whenever the cause is improperly brought before the clerk, Springs v. Scott, 132 N. C., 548; Smith v. Gudger, 133 N. C., 627; Ryder v. Oates, 173 N. C., 569, 92 S. E., 508, or whenever the clerk has no jurisdiction, Roseman v. Roseman, 127 N. C., 494; In re Anderson, 132 N. C., 243; Williams v. Dunn, 158 N. C., 399, 74 S. E., 99, and the cause is “for any ground whatever” sent to the judge, the judge may retain jurisdiction and dispose of the cause as if originally returnable before him. Perry v. Bassenger, 219 N. C., 838, 15 S. E. (2d), 365. When an issue of fact is raised by the pleadings in a special proceeding the clerk is required to transfer it to the civil issue docket without motion or appeal. C. S., 758.
*105When the summons in. a case of which the Superior Court has jurisdiction is brought before the clerk or before the clerk at term, or before the judge in chambers it is equally in the Superior Court and there can be no defect of jurisdiction. Ewbank v. Turner, 134 N. C., 77.
Hence,- the clerk acts for, in and as a part of the Superior Court, and matters before the clerk are in the Superior Court. Roseman v. Roseman, supra; Williams v. Dunn, supra; Perry v. Bassenger, supra. The clerk and the judge each performs the duties and exercises the jurisdiction imposed upon him by statute, the jurisdiction of the judge in matters pending before the clerk not being derivative but supervisory in nature. Perry v. Bassenger, supra.
Procedural law should be simple, direct and efficacious, so framed as to promote the speedy administration of justice as cheaply as is consistent with due regard to the rights of the parties. To this end the Legislature enacted C. S., 637. This statute, which has done so much to facilitate the efficient administration of justice, has always received the liberal interpretation that would best promote its beneficent purpose. Williams v. Dunn, supra; Bynum v. Bank, 219 N. C., 109, 12 S. E. (2d), 898. While this case may not come within the letter of that act, it is within its spirit and intent. When a motion of this character is brought before the judge, all parties having been duly notified, there is no sound reason why the principles expressly established by this law in all civil actions and special proceedings should not prevail here. Williams v. Dunn, supra.
Aside from C. S., 637,1 am of the opinion that the judge had authority to act. The proceeding was pending in the Superior Court before the clerk. The respondent was a party. The petitioners desired relief in equity which the clerk was without authority to grant. They applied by petition, after due notice, to the branch of the same court which had jurisdiction, for a writ necessary to hold the property in statu quo, pending further action by the clerk. This procedure does no one detriment, saves time and costs, and avoids the unseemly “marching and counter-marching” incident to the old practice, when a plaintiff was put out of court but was permitted to come back into the same court provided he could eorreetly guess the door through which he should enter. Ewbank v. Turner, supra; Harris v. Board of Education, 216 N. C., 147, 4 S. E. (2d), 328; Perry v. Bassenger, supra.
This conclusion is not affected by the fact that this special proceeding was, under the old practice, a probate matter. The office of probate judge has been abolished and the duties heretofore pertaining to the clerks of the Superior Court as judges of probate are now performed by the clerk as such. C. S., 925; Brittain v. Mull, supra.
WiNBORNE and DeNNY, JJ., join in concurring opinion.