Brooks v. Brooks, 220 N.C. 16 (1941)

Sept. 17, 1941 · Supreme Court of North Carolina

220 N.C. 16

MINNIE RUSH BROOKS v. CHARLES P. BROOKS.

(Filed 17 September, 1941.)

Courts § 2a — Superior Court acquires jurisdiction of cause upon docketing of interlocutory judgment of General County Court.

In this action for subsistence without divorce, C. S., 1667, tried in the General County Court, judgment was rendered in favor of plaintiff. This judgment was duly docketed in the office of the clerk of the Superior Court of the county. Thereafter order was entered in the General County Court reducing the amount of the monthly allowance. Upon the abolition of the General County Court, the judge thereof, pursuant to previous notice given to the county bar, entered a general order transferring all cases then pending to the Superior Court of the county. Thereafter defendant failed to further comply with the orders for the payment of subsistence and plaintiff moved in the Superior Court for an order that defendant show cause why he should not be adjudged in contempt and for an order increasing the amount of subsistence. Defendant entered a special appearance and demurred to the jurisdiction of the Superior Court. Held: Upon the docketing of the judgment in the Superior Court, it acquired jurisdiction of the cause, and defendant’s demurrer to the jurisdiction was properly overruled, C. S., 1608 (dd). Whether the provisions of cli. 69, Public-Local Laws of 1941, or the order of the General County Court transferring pending actions to the Superior Court, are sufficient to effect the transfer need not be considered.

Appeal by defendant from Bobbitt, J., at March Term, 1941, of BUNCOMBE.

Civil action for subsistence without divorce, under C. S., 1667.

Plaintiff moved in the Superior Court for an order for defendant to appear and show cause why he should not be adjudged in contempt of court for failure to comply with, judgment and orders theretofore entered in General County Court of Buncombe County, requiring him to pay reasonable subsistence to plaintiff and her children, and for an order increasing the amount of subsistence, and for attorney’s fees.

On 20 February, 1941, defendant filed special appearance and demurred to the jurisdiction of the Superior Court upon the ground that the action tried in the General County Court came to the Superior Court upon an omnibus order signed by the judge of the General County Court on the last day of its existence, transferring all pending civil actions to the Superior Court — the defendant contending that the transfer was without notice to or consent of the parties and was not in compliance with provision of law for transfer of eases from General County Court to Superior Court.

The trial court finds facts substantially these: This action, having-been commenced in the Superior Court of Buncombe County on 23 June, 1933, was by consent transferred to the General County Court of said county on 30 June, 1933. Thereafter, on 15 December, 1933, upon verdict favorable to plaintiff, judgment was rendered in said County Court ordering and requiring defendant to pay certain amount twice each month at stated time, after said date, for the benefit of plaintiff and her children, and a further amount on counsel fees allowed.

A transcript of this judgment was duly docketed in the office of the clerk of Superior Court on 18 December, 1933.

Thereafter, on 10 January, 1936, order was entered in the General County Court reducing the amount of monthly allowance.

Defendant complied with the orders in this cause up to 15 February, 1941, but failed to make payment on that date and all subsequent payments.

The board of county commissioners of Buncombe County having theretofore adopted a resolution abolishing the General County Court as of 1 January, 1941, the judge of the General County Coxxrt, pursuant to previous notice given in a meeting of the Buncombe County Bar, entered a general order on 31 December, 1940, transferring to the Superior Court all civil cases then pending in said General County Court. Thereafter, the General Assembly of North Carolina, at the 1941 session, passed an act entitled, “An Act relating to the transfer of civil and criminal cases from the General County Court of Buncombe County to the Superior Court of Buncombe,” effective from and after its ratification, 21 February, 1941. Public-Local Laws 1941, ch. 69.

Upon such findings of fact, the judge of Superior Court being of opinion that the judgment entered upon verdict of the General County Court of Buncombe County, transcripted to and recorded in the office of the clerk of Superior Court, is a valid and binding judgment, and enforceable under tbe laws of this State, overruled and dismissed tbe special appearance, demurrer and motion to dismiss of tbe defendant. Tbe judge further ordered that defendant appear on a date named and sbow cause why there should not be entered an order directing him to pay to plaintiff tbe amounts heretofore fixed by tbe court, or such an amount as to tbe court may seem just and proper in this cause.

Defendant objects and excepts, and appeals to Supreme Court and assigns error.

Weaver & Miller for plaintiff, appellee.

J. W. Haynes for defendant, appellant.

WiNBORNB, J.

Upon tbe facts found, does tbe Superior Court of Buncombe County have jurisdiction of this cause of action? An affirmative answer is found in section 19 of chapter 216, Public Laws 1923; section 1608 (dd) of 1924 Consolidated Statutes of North Carolina. There, referring to judgment of general county courts, it is provided that: “. . . transcripts of such judgments may be docketed in tbe Superior Court as now provided for judgments of justices of tbe peace, and tbe judgment when docketed shall in all respects be a judgment of tbe Superior Court in tbe same manner and to tbe same extent as if rendered by tbe Superior Court . . Therefore, when tbe judgment of tbe General County Court was docketed in Superior Court, it became a judgment of tbe Superior Court, and within its jurisdiction. See Investment Co. v. Pickelsimer, 210 N. C., 541, 187 S. E., 813.

In tbe light of tbe above, it is unnecessary to consider whether either tbe order of tbe judge of the General County Court or tbe act of tbe Legislature be sufficient to effect tbe transfer from tbe General County Court to tbe Superior Court.

Tbe judgment below is

Affirmed.