dissenting: We are met at the very threshold of this case by a fatal defect of jurisdiction. This case was pending on the civil issue docket of Wake County. The resident judge rendered judgment in chambers, adjudicating the merits of the controversy. It was not an “in chambers” or “vacation” matter, and the parties could not make it so, or confer jurisdiction, by consent. Reaves v. Mill Co., 216 N. C., 462, 5 S. E. (2d), 305; High v. Pearce, 220 N. C., 266, 17 S. E. (2d), 108; Dependents of Thompson v. Funeral Home, 205 N. C., 801.
Gr. S., 7-65, relates only to “vacation” or “in chambers” jurisdiction. It confers concurrent jurisdiction on the resident judge only in those matters in which the Superior Court has jurisdiction “out of term.” Actions pending on the civil issue docket are not included. Hence, the resident judge has no jurisdiction, and the judgment is without force in law. Ward v. Agrillo, 194 N. C., 321, 139 S. E., 451; Greene v. Stadiem, *377197 N. C., 472, 149 S. E., 685; Drug Co. v. Lenoir, 160 N. C., 571, 76 S. E., 480; Howard v. Coach Co., 211 N. C., 329, 190 S. E., 478; Shepard v. Leonard, 223 N. C., 110. “It is tbe same as if there were no court.” Hill v. Stansbury, ante, 356; Monroe v. Niven, 221 N. C., 362, 20 S. E. (2d), 311.
An agreed statement of facts “is equivalent to a special verdict, and the judge may render judgment at term, or out of term by consent of the parties.” McIntosh P. & P., sec. 518. But “it may be generally stated that the judge holding the courts of the district in regular succession is the only proper judge, and he has sole jurisdiction in civil actions in such district during the six months of his assignment. The resident judge has no more authority than any other judge, except when holding the courts of his district, unless specially authorized by statute.” Ibid., sec. 49; Moore v. Moore, 131 N. C., 371.
It is suggested that Hervey v. Edmunds, 68 N. C., 243, cited by McIntosh (sec. 518), sustains the authority of the resident judge to sign the judgment herein. An examination of the original record discloses that the judgment under attack in that case was signed by the judge of the district shortly after the adjournment of the court in which the cause was pending. At that time rotation of judges was not required. The question of concurrent jurisdiction or jurisdiction of a resident judge could not arise. In each of the other cases cited by Mr. McIntosh the judgment was signed by the judge presiding out of term by consent. Those cases are not in point.
In such matters (civil actions) jurisdiction is acquired at term. Being so acquired, any cause not requiring the intervention of a jury may be heard out of term by consent. Assignment to hold the court is what confers jurisdiction. The consent merely waives the right to have the hearing in court at term. Edmundson v. Edmundson, 222 N. C., 181.
Only the judge who would have had jurisdiction had the cause been submitted to a jury has authority to hear it at term or, by consent, out of term. G. S., 1-250 (C. S., 626) ; Greene v. Stadiem, supra; Drug Co. v. Lenoir, supra; Moore v. Moore, supra.
Our jurisdiction is derivative. If the court below had no jurisdiction we have none. It is the policy of the Oourt to decline to assume jurisdiction when none exists. We take notice of want of jurisdiction ex mero motu, Shepard v. Leonard, supra, even when the only defect is the failure of the record to show the organization of the court below. Sanders v. Sanders, 201 N. C., 350, 160 S. E., 289.
We have recently, at this term, vacated an order allowing reputable counsel compensation for services rendered on the grounds that the resident judge had no jurisdiction to sign an order in a civil action pending on the civil issue docket and, although not before us for review, we *378seriously questioned bis right to sign a consent judgment. Hill v. Stansbury, supra. In my opinion that case is controlling.
It may be suggested that there was no consent of counsel in the Hill case, supra, as here. But we cannot make that fact decisive without holding that consent confers jurisdiction.
No doubt legislation giving the resident judge concurrent jurisdiction in all matters not requiring intervention of a jury or in which trial by jury has been waived would promote the prompt administration of justice and would be welcomed by the profession. So far, however, the General Assembly has failed to take that course. We must, therefore, abide by the law as it is now written.
Passing the question of jurisdiction, we come to the merits of the appeal.
It is significant that the judgment under review contains no finding of fact, but merely states a single conclusion of law, i.e., the defendant is indebted to the plaintiff in a specified sum.
The findings and judgment of the Superior Court are prima facie correct. S. v. Jackson, 183 N. C., 695, 110 S. E., 593. The presumption is against error, and the judgment must be sustained unless the appellant shows error as a matter of law. Mason v. Andrews, 193 N. C., 854, 138 S. E., 341; Mewborn v. Kinston, 199 N. C., 72, 154 S. E., 76; Bell v. Smith, 171 N. C., 116, 87 S. E., 987; Poindexter v. Call, 208 N. C., 62, 179 S. E., 335. If error is not shown this Court will presume that the ruling of the lower court was correct and that it found facts and inferences of fact sufficient to support its judgment. Baggett v. Lanier, 178 N. C., 129, 100 S. E., 254; Jones v. Fowler, 161 N. C., 354, 77 S. E., 415; Holcomb v. Holcomb, 192 N. C., 504, 135 S. E., 287; Mewborn v. Kinston, supra.
Here, then, we, must assume that the court below inferred from the stipulated facts that the parties contemplated two separate policies and concluded that the issuance of a policy of insurance against robbery did not merge, or discharge defendant’s obligation under, the binder for insurance against burglary. Under uniform decisions of this Court, if the facts agreed permit or support this inference and the resulting conclusion, the judgment should be affirmed.
But the majority reverses the court below upon the conclusion that “it is manifest” there was only one binder and the parties contemplated the issuance of only one policy. In my opinion the record fails to support this premise upon which the majority opinion is bottomed. For that reason I am unable to concur.
If we consider only paragraphs 5, 6, and 7 of the agreed facts, without reference to other facts appearing of record, this conclusion may be *379sustained, although there are indications to the contrary even in these stipulations.
But in determining whether the facts agreed fail to support the judgment and, as a matter of law, require the inference that the parties contemplated one and only one policy, we should relate the facts agreed to the pleadings and construe them in the light of what is there alleged.
In so doing, facts wholly inconsistent with the conclusion of the majority are made to appear.
(1) Plaintiff applied for two policies: one for robbery (by letter), and later one for burglary (by telephone).
(2) Defendant admits a binder for robbery insurance and one for burglary.
(3) It advised plaintiff it was “covered” as requested — and the request was for two policies. (Stip. 4.)
(4) It admits, that the coverage for robbery insurance was effective 21 December, 1939, six days before the letter of acknowledgment was written and prior to the time application for burglary insurance was received. (The policy issued is effective as of 21 December.)
(5) It did not issue burglary insurance for the reason it was under the impression that application therefor had been withdrawn — so it alleges in defense.
(6) The policy issued is on a form adapted for robbery insurance only.
So I construe the record.
Likewise, it is'noted in the majority opinion that the letter of 27 December, 1939, uses “policy” in the singular. In this connection it .must be noted also that it refers to the applications, one for robbery and another for burglary, and “binders” is used in the plural; and the letter advises “You are covered as requested.”
These facts, in my opinion, justify inferences sufficient to sustain the judgment.
The policy issued is exclusively for robbery. There is no provision, space, or blank therein which may be used to include burglary coverage. There is no allegation or stipulation that any such combination policy exists. Still it is conclusively presumed that the parties contemplated issuance of that form of policy.
It is agreed that plaintiff applied for a policy of insurance against burglary in addition to the policy of insurance against loss by robbery theretofore applied for. But the Court concludes, as a matter of law, that only one policy was contemplated.
Defendant agreed to issue policies in accord with the applications and asserts it did not issue a policy insuring against loss by burglary for *380the reason that its representative “was informed by an employee of plaintiff” that plaintiff did not desire or require burglary insurance. The Court says: “It is manifest only one policy was contemplated.”
Defendant says it failed to issue burglary insurance because it was ander the impression application therefor had been withdrawn. The Court says its contract so to do was merged in the robbery policy.
A policy was delivered in fulfillment of the contract for robbery insurance. Plaintiff retained the policy for five months without objection, and therefore “it will be conclusively presumed that plaintiff accepted the policy as written with the obvious departure from the binder.”
Thus the plaintiff is charged with negligence. Yet he did all that he could. It was the duty of the defendant to act. It advised plaintiff there would be a delay due to the necessity of making an investigation. It issued one policy in fulfillment of the first agreement. It delayed delivery of the second policy. Plaintiff is charged with the resulting loss upon the theory that when he accepted the robbery policy he accepted it “with the obvious departure from the binder” and is now estopped to assert the contract for burglary insurance.
The agreed facts are somewhat ambiguous. It is unfortunate they were not made more definite, particularly in respect to the intent of the parties, which is material here. Certainly, in my opinion, they are not such as to warrant the conclusion, as a matter of law, that only one reasonable inference — an inference contra the judgment — can be drawn therefrom.
It is admitted that an agent, with full power to bind defendant in insurance contracts,- received two separate applications for insurance and issued binder coverage immediately as requested. He wrote plaintiff, in response to the applications : “We have put this coverage in effect immediately,” and “You are covered as requested.” The defendant, acting under a misapprehension, did not issue the policy insuring against loss by burglary. Thereafter, during the effective period of the binder insurance (admittedly twelve months), plaintiff’s place of business was burglarized of $546.78, which defendant has refused to pay.
It is difficult to conceive of a more elementary cause of action or to state one more clearly. Here is shown: a contract to indemnify against loss, a loss within the terms of the contract, and a refusal to discharge the terms of the contract. The defendant, having admitted issuance of the binders, both for robbery and burglary insurance, the trial judge gave judgment for plaintiff. In my opinion the inferences necessary to support such judgment are fully supported by the record. Merger is not pleaded, and the doctrine of merger is not applicable.
*381It is not amiss to say that in all probability tbe divergence of opinion arises out of a misconception of a “binder” as used in actual practice in tbe insurance field. Tbis also is perhaps what led plaintiff into stipulating that tbe letter of 27 December constitutes a contract of insurance. Tbe insured seldom, if ever, receives any preliminary receipt or memorandum. When insurance is applied for tbe agent makes a memorandum of tbe name, amount, and type of insurance applied for, and tbe location of tbe property. Tbis is tbe binder. Tbe insurance is effective immediately. Tbis is wbat tbe agent meant when be advised plaintiff that be put tbe insurance in effect immediately. But tbis memorandum is not delivered to tbe insured. Instead, it is placed on tbe desk of tbe policy clerk for guidance in issuing tbe policy. Proper consideration of tbis practice will make clear apparent inconsistencies in tbe letter of acknowledgment and in tbe stipulations.
I vote to dismiss for want of jurisdiction. Failing in that, I vote to affirm.
DeviN and Sea well, JJ., join in dissenting opinion.