Hodge v. Hodge, 9 N.C. App. 601 (1970)

Oct. 21, 1970 · North Carolina Court of Appeals · No. 7010DC512

9 N.C. App. 601

ERIC ANTHONY HODGE v. GLENN I. HODGE and IDA M. HODGE

No. 7010DC512

(Filed 21 October 1970)

Courts § 11.1— transfer of action from superior court to district court — requisite of transfer

Where an action was instituted in the superior court prior to the establishment of the district court in the county and where no order was ever entered transferring the action from the superior court to the district court, the district court judge was without jurisdiction to enter an order in the action. G.S. 7A-258; G.S. 7A-259.

Appeal by defendant Glenn I. Hodge from Preston, District Court Judge, 81 March 1970 Session of Wake County District Court.

On 25 October 1968 the plaintiff recovered judgment against Glenn I. Hodge for $3,184.00 plus interest and cost, in the Superior Court of Wake County. Execution was returned unsatisfied. Thereafter the Clerk of Superior Court of Wake County, upon application of plaintiff, issued an order requiring both defendants to appear before a referee and answer concerning property which the defendants might have. On 11 February 1970 plaintiff filed a motion for the appointment of a receiver for defendant. The motion was filed in the office of the Clerk of Superior Court of Wake County, the caption containing the recital “In the General Court op Justice Superior Court Division.” On 8 April 1970 District Court Judge Edwin S. Preston signed an order which, among other things, appointed a receiver for the defendant. From the order of Judge Preston, defendant appealed.

Yarborough, Blanchard, Tucker and Denson by Alexander B. Denson for plaintiff appellee.

William T. McCuiston for defendant appellant.

VAUGHN, Judge.

Defendant brings forward several assignments of error and arguments in support thereof. We need discuss only one.

This action was instituted in the superior court prior to the establishment of district courts in Wake County. Although G.S. 7A-259 provides that, upon establishment of a district court in a district, any superior court judge authorized to hear motions, may on his own motion transfer cases pending in the superior court to the district court, no such transfer has been made in this case. Neither plaintiff nor defendant has moved to transfer under the provisions of 7A-258. Absent an order transferring this cause from the superior court division, the district court judge was without authority to hear the motion for the appointment of a receiver. The order appealed from is hereby vacated and the cause is remanded to the Superior Court of Wake County.

Vacated and remanded.

Judges Campbell and Britt concur.