Collins v. Wooten, 212 N.C. 359 (1937)

Nov. 3, 1937 · Supreme Court of North Carolina

212 N.C. 359

JOHN W. COLLINS and EDWIN C. COLLINS, Individually and as Trustees, and PLATO COLLINS, SR., v. LIZZIE WOOTEN, KATE STROUD, MAB STROUD, and CLYDE STROUD, Children and Heirs at Law of ANNIE STROUD, Deceased, et al.

(Filed 3 November, 1937.)

1. Judges § 2a—

The constitutional requirement that a judge shall reside in the district for which he is elected confers no jurisdiction, and the resident judge, while not holding the courts of his district by assignment, exchange, or special commission, has jurisdiction of matters pending in his district only when expressly conferred by statute.

2. Courts § 3 — Where order of resident judge is void for want of jurisdiction, judge holding subsequent term may hear matter.

Where the resident judge, while not holding courts in the district, approves the clerk’s order allowing attorneys’ fees in a special proceeding, another judge subsequently holding court in the county may hear an appeal from the clerk’s order, the appeal not being from one Superior Court judge to another, since the order of approval is void for want of jurisdiction.

3. Executors and Administrators § 29—

Beneficiaries of an estate have a right to have a Superior Court judge, having jurisdiction, hear and determine their appeal from the clerk’s order allowing attorneys’ fees for services rendered in connection with the sale of lands to make assets and sale for division.

Appeal by tbe defendants, Mrs. Mary Hill Manning, Mrs. Leab Hill Nunn, Natban Hill and Norman Hill, from Hamilton, Special Judge, at August Term, 1937. From Lenoib. Errpr and remanded.

Tbis was a special proceeding instituted by tbe plaintiffs before tbe clerk of tbe Superior Court of Lenoir County for tbe sale of certain lands belonging to tbe parties hereto as beirs at law of tbe late Natban B. Wooten. After tbe death of Natban B. Wooten, in a proceeding to sell bis land for division, Allen W. Wooten, commissioner appointed by tbe court, sold and conveyed to H. W. Davis Lot No. 3 of said land and took as part payment for tbe purchase price four notes secured by trust deed. Tbe commissioner failed to collect said notes or to foreclose said deed of trust, and tbe same became barred by tbe statute of limitations. Jones and wife conveyed said tract of land to E. A. and J. R. Hardy. Tbe plaintiffs procured quitclaim deeds from E. A. Hardy and wife and J. R. Hardy to them as trustees for tbe beirs of Natban B. Wooten, and tbis proceeding was instituted for tbe purpose of selling tbe said land for division.

After tbe land bad been sold and tbe sale confirmed, counsel for tbe plaintiffs filed a petition before tbe clerk for an allowance for attorneys’ fees, setting forth in tbe petition -that tbe plaintiffs bave entered into a contract to pay said counsel 33.1-3 per cent of tbe full purchase price. Decree was entered, allowing plaintiffs’ counsel $1,333.33 without notice to tbe defendants, and tbe order allowing attorneys’ fees was on tbe same date, to wit, 3 July, 1937, approved and confirmed by Henry A. Grady, resident judge. On 13 July, 1937, certain of the defendants filed exceptions to said order and served notice of appeal. Thereupon tbe clerk voluntarily reduced tbe amount allowed to $1,000. When tbe cause came on to be beard in tbe Superior Court tbe judge found that tbe said order is an order of tbe resident judge and that tbe court was without authority to pass upon tbe exception of tbe defendants and dismissed tbe appeal. Tbe above named defendants excepted and appealed.

Louis I. Rubin and Rouse & Rouse appearing herein on their own behalf as petitioners, appellees.

S. H. Newberry, for defendants, appellants.

Barnhill, J.

A judge of the Superior Court, when not bolding tbe courts of the district of bis residence by assignment under tbe statute, or by exchange, or under a special commission from tbe Governor, has jurisdiction in matters pending in bis borne district only when such jurisdiction is expressly conferred by statute. No jurisdiction is conferred upon tbe resident judge by the requirement of tbe Constitution that every judge of tbe Superior Court shall reside in tbe district for which be is elected. Ward v. Agrillo, 194 N. C., 321; Howard v. Coach Co., 211 N. C., 329.

Tbe approval by tbe resident judge of tbe order of tbe clerk allowing attorneys’ fees neither added to nor subtracted from its legal effect. It remained essentially an order of tbe clerk. There is no statute conferring upon tbe resident judge tbe duty or authority to approve or disapprove orders made by a clerk allowing attorneys’ fees in special proceedings. Tbe appeal by tbe defendants from tbe order of tbe clerk as approved by tbe resident judge was not an appeal from one judge of tbe Superior Court to another. Dail v. Hawkins, 211 N. C., 283; S. v. Lea, 203 N. C., 316, 166 S. E., 292; Wellons v. Lassiter, 200 N. C., 474, are not in point.

We are not called upon at this time to decide whether the clerk had the authority to allow counsel for the plaintiffs attorneys’ fees for services rendered in this proceeding. Even if it be conceded that the clerk possessed such power the defendants are entitled to have their appeal heard and determined by the judge of the Superior Oourt having jurisdiction thereof.

There was error in the judgment, and the cause is remanded for a hearing upon defendants’ appeal.

Error and remanded.