Lewis v. Harris, 238 N.C. 642 (1953)

Nov. 25, 1953 · Supreme Court of North Carolina
238 N.C. 642


(Filed 25 November, 1953.)

1. Courts § 2: Appeal and Error § 6c (1) —

Objection to want of jurisdiction in the court may be made at any time, and in fact, immediately want of jurisdiction is made apparent the court should take cognizance thereof and stop the proceedings eso mero motu.

2. Judges § 2b—

The power and authority given to emergency judges are to be exercised only in the court in which they are assigned to hold, and an emergency judge’s jurisdiction to hear “in chambers” matters terminates with the termination of the court to which he is assigned. Constitution of N. C., Art. IAr, sec. 11; G.S. 7-52.

*6433. Same: Judgments § 10: Courts § 2—

Hearing of an order to show cause why the temporary restraining order issued in the cause should not be continued to the hearing was made returnable at a term of court in another county of the district. The order came on for hearing before an emergency judge assigned to hold the term of court in such other county, and the parties agreed that his order might be entered out of term and out of the county. Held: The emergency judge had no jurisdiction to enter an order in the cause out of term and out of the county and such jurisdiction could not be conferred upon him by consent of the parties,, and therefore his order so entered, dismissing the action, is a nullity.

4. Injunctions § 8—

Upon return of an order to show cause why the temporary restraining order issued in the cause should not be continued to the hearing, the action is before the court solely for the hearing on the order in the cause as constituted on the civil issue docket.

Appeal by substituted plaintiff from Grady, Emergency Judge, at February Term, 1953, of Pamlico, beard upon order to show cause why injunction restraining cutting of timber should not be continued to final hearing, and upon motion of substitute defendants to dismiss the action by reason of plaintiffs’ unreasonable neglect and failure to prosecute same.

The record proper, as shown in the record on this appeal, may be summarized as follows:

1. Summons in this action, entitled as above set forth, was issued by the Clerk of Superior Court of Pamlico County on 2 April, 1907, returnable to April Term, 1907, at which term complaint was filed.

2. The complaint alleges the plaintiff Louvenia Lewis was the owner in fee simple and in possession of a certain specifically described tract of land in No. 1 Township, Pamlico County; that defendants unlawfully entered thereupon and cut and removed therefrom timber to plaintiffs’ damage of $300; that defendants claim an interest in said land adverse to plaintiffs; and that defendants have “no solid interest in said lands.” Wherefore plaintiff demands judgment in accordance therewith.

3. A second summons was issued 23 September, 1907, by the Clerk of said Superior Court for the individual defendants; and thereafter at April Term, 1910, they filed answer in which they deny that -plaintiff Louvenia lewis is the owner in fee of all the lands described in the complaint, and assert that they own in fee simple a portion of said lands; and further they deny the allegations as to wrongful entry and trespass.

4. Subsequently, three arbitrators were appointed, and on 27 September, 1915, one of them filed report setting out that in his opinion the title to the land in controversy was in plaintiffs, and thereafter on 13 April, 1910, a substituted arbitrator made an endorsement on, concurring in said report. And upon exception to the report, the same was set aside, at *644October Term, 1916, and tbe arbitrators ordered to rebear, after notice as to tbe time and place, all evidence offered by tbe parties, and make tbeir report at tbe next term of tbe court.

5. And at tbe Spring Term, 1917, it appearing to tbe court that tbe arbitrators bad failed to file further report as ordered by tbe court, an order was entered by tbe presiding judge, by consent, that if said report be not filed by tbe time of setting of tbe calendar for tbe term of October, 1917, tbe said arbitration “shall (be) and tbe same is set aside, and tbe cause shall stand for trial at tbe next term” of tbe court.

6. No motion, or notice, or order appears in tbe cause between tbe order entered at Spring Term, 1917, and 14 January, 1953, when M. M. Banks suggested to tbe court: (a) Tbe death of both original plaintiffs, and that be, himself, by mesne conveyances has become tbe owner of all their right, title and interest in tbe land described in tbe complaint, and moved that be be made a party plaintiff in this action, and (b) tbe death of both original individual defendants, leaving as tbeir sole heirs at law Mack D. Harris, whose wife is named Laura Harris, and Olive Harris, who is now married to Graham Dixon, and moved that they be made parties defendant in this action, and that summons be served upon them as provided by law.

7. Pursuant thereto, the Clerk of Superior Court, finding tbe facts to be accordant with tbe suggestion so made entered an order on 3 February, 1953, that M. M. Banks be made a party plaintiff to this action in place and stead of tbe original plaintiffs, and that Mack D. Harris and wife Laura Harris, and Olive Harris Dixon and her husband, Graham Dixon, be substituted as parties defendant in place and stead of original individual defendants, and that they be allowed twenty days from date of tbe order within which to file tbeir pleadings. Service of this order, and of tbe motion on which it was entered, as above set forth, was made on each of tbe newly named defendants on 7 February, 1953. And summons for them, dated 3 February, 1953, appears in tbe record.

And tbe substituted plaintiff filed a petition alleging trespass by tbe substituted defendants, and prayed that they, and tbeir agents, employees and representatives be restrained from entering and trespassing upon tbe land described in tbe complaint.

Thereupon, on 4 February, 1953, Stevens, Resident Judge of Superior Court of Sixth Judicial District issued such temporary restraining order, and ordered that said defendants appear before him, or such other judge, as may be then and there presiding, at February Civil Term, 1953, of Superior Court of Pitt County, N. C., on 16 February, 1953, at 2 :30 p.m., or as soon thereafter as they can be beard, to show cause, if any they have, why this order should not be continued until tbe final determination of this action,- — tbe order being conditioned upon plaintiff, M. M. Banks, *645executing and filing bond in tbe amount of $200, etc. Tbe petition and tbis order were served on each of said defendants on 7 February, 1953, by sheriff of Pamlico County.

8. Thereafter, under date of 14 February, 1953, tbe substituted defendants, by and through their attorneys, purporting to enter special appearance solely for tbe purpose of making motion to dismiss tbe action, moved tbe court (1) That tbe temporary restraining order heretofore issued in tbe cause be dissolved and vacated and tbe action be dismissed; (2) that tbe order theretofore issued by tbe Clerk of Superior Court of Pamlico County on 3 February, 1953, purporting to substitute parties plaintiff and defendant in tbis action, be declared null and void and tbe same be set aside and vacated; (3) that tbe summons, complaint, answer and several motions and orders filed in tbe original action be read and considered in support of tbe motion to dismiss; and (4) that they recover their costs in tbis action.

9. Tbe cause came on for bearing, and was beard before, and by tbe Honorable Henry A. Grady, an Emergency Judge, specially commissioned and assigned to bold, and bolding tbe regular Civil February Term, 1953, of Superior Court of Pitt County, a one-week term commencing 16 February, 1953, at Greenville, North Carolina, upon (1) tbe order to show cause, and (2) tbe motion by substituted defendants to abate tbe action, as aforesaid. Thereafter on 14 March, 1953, at Pine Crest, North Carolina, Judge Grady entered an order “that tbe cause stand abated,” and that “tbe same is dismissed at tbe cost of tbe substituted plaintiff” and bis surety. And in tbis order it is stated that: “It was agreed by counsel that tbis order might be entered out of term and out of tbe county to have tbe same effect as if entered at term,” citing Shepard v. Leonard, 223 N.O. 110.

Tbe substituted plaintiff, M. M. Banks, excepted to tbis judgment, and appeals to Supreme Court and assigns error.

George B. Biddle, Jr., for substituted plaintiff, appellant.

Lee & Hancock for defendant, appellee.


While tbe parties debate in tbis Court tbe question as to whether tbe judge below erred in bis ruling that tbe action stand abated, and in dismissing tbe action, it is apparent upon tbe face of tbe record that tbis Court does not reach tbis question, for there looms at tbe threshold, of tbis appeal, another question: Did Grady, Emergency Judge, have jurisdiction to enter tbe order now being challenged? Tbe answer is No.

Tbe jurisdiction of an Emergency Judge over tbe subject matter of an action, or of a motion in tbe cause, depends upon tbe authority granted to *646Lim by the Constitution and laws of the sovereignty, and is fundamental. McIntosh’s N. C. P. & P. 7. Stafford v. Gallops, 123 N.C. 19, 31 S.E. 265. And objection to such jurisdiction may be made at any time during the progress of the action. This principle is enunciated and applied in a long line of decisions in this State. See Henderson County v. Smyth, 216 N.C. 421, 5 S.E. 2d 136, where prior cases are listed, including Burroughs v. McNeill, 22 N.C. 297, and Branch v. Houston, 44 N.C. 85. See also McCune v. Mfg. Co., 217 N.C. 351, 8 S.E. 2d 219; Edwards v. McLawhorn, 218 N.C. 543, 11 S.E. 2d 562; S. v. King, 222 N.C. 137, 22 S.E. 2d 241; Shepard v. Leonard, 223 N.C. 110, 25 S.E. 2d 445; Hopkins v. Barnhardt, 223 N.C. 617, 27 S.E. 2d 644; Ridenhour v. Ridenhour, 225 N.C. 508, 35 S.E. 2d 617; Brissie v. Craig, 232 N.C. 701, 62 S.E. 2d 330; Bailey v. McPherson, 233 N.C. 231, 63 S.E. 2d 559.

In Burroughs v. McNeill, supra, it is stated: “The instant that the court perceives that it is exercising, or is about to exercise, a forbidden or ungranted power, it ought to stay its action, and, if it does not, such action is, in law, a nullity.”

And to like effect is Branch v. Houston, supra, where Pearson, J., wrote: “If there be a defect, e.g., a total want of jurisdiction apparent upon the face of the proceedings, the court will of its own motion, 'stay, quash, or dismiss’ the suit. This is necessary to prevent the court from being forced into an act of usurpation, and compelled to give a void judgment . . . So, ex necessitate, the court may, on plea, suggestion, motion, or ex mero motu, where the defect of jurisdiction is apparent, stop the proceedings.”

These principles have been applied all through subsequent decisions, even to the present time.

What then is the jurisdiction granted to an Emergency Judge by the Constitution and laws of North Carolina? Article IY, Section 11, of the Constitution of North Carolina, as amended, pursuant to proposal submitted under Chapter 775 of 1949 Session Laws of North Carolina, and adopted at the General Election on 7 November, 1950, declares, in pertinent part, that: “The General Assembly may provide by general laws for the selection or appointment of special or emergency superior court judges not assigned to any judicial district, who may be designated from time to time by the Chief Justice to hold court in any district or districts within the State; and the General Assembly shall define their jurisdiction . . .”

And the General Assembly, implementing Article IV, Section 11, of the Constitution, as so amended, enacted Chapter 88 of 1951 Session Laws of North Carolina, in which G.S. 7-52 was rewritten to read, in pertinent part, as follows : “Jurisdiction of Emergency Judges: Emergency Superior Court Judges are hereby vested with the same power and authority in all matters whatsoever, in the courts in which they are assigned to hold, *647that regular judges bolding tbe same courts would have. An emergency judge duly assigned to bold tbe courts of a county or judicial district shall bave tbe same powers in tbe district in open court and in chambers as tbe resident judge or any judge regularly assigned to bold tbe courts of tbe district would bave, which jurisdiction in chambers shall extend until tbe term is adjourned or tbe term expires by operation of law, whichever is later.”

Thus it appears that tbe power and authority given to emergency judges are to be exercised only “in tbe courts in which they are assigned to bold,” but that tbe jurisdiction of an emergency judge “in chambers” terminates with tbe termination of tbe term of court which be is assigned to bold.

In tbe light of these provisions, applied to case in band, it is seen that this action was pending, and at issue on the civil issue docket of the Superior Court of Pamlico County, and tbe motion of substituted defendants was made in that cause — and not at term time. Such motion can be beard “at term,” and only in that county. Shepard v. Leonard, supra. And Judge Grady bad no commission to bold, and was not bolding a term of court in Pamlico County when tbe motion was made and beard. Moreover, tbe order was made after tbe termination of tbe February Term, 1953, of Superior Court of Pitt County, and at Pine Crest, N. C., tbe home of Judge Grady in Craven County. Thus be bad no jurisdiction over tbe motion, and could not acquire it by waiver or consent. McCune v. Mfg. Co., supra.

Indeed, tbe cause was before Judge Grady in Pitt County only because be as an Emergency Judge was assigned and commissioned to bold, and was bolding tbe February Civil Term, 1953, of tbe Superior Court of that county.

It was before him for only one purpose, and that is for bearing on tbe order, and notice to substituted defendants, to show cause why tbe temporary injunction should not be continued to the final bearing. It was before him then only as tbe action was constituted on tbe civil issue docket of Pamlico County. And it does not appear that there was a ruling on this matter.

Too, it is appropriate to note that tbe case of Shepard v. Leonard, supra, cited as authority in support of jurisdiction, relates to jurisdiction of a special judge as it existed prior to tbe amendment to tbe Constitution as above set forth, and before later enactment of tbe General Assembly defining jurisdiction of emergency judges.

For reasons stated Judge Grady, as an Emergency Judge, was without jurisdiction to bear and pass upon tbe motion of tbe substituted defendants. Hence tbe order, abating tbe action, is a nullity, and is so held to be.

For reasons stated, tbe judgment from which tbe appeal is taken is