Stroupe v. Stroupe , 301 N.C. 656 ( 1981 )

273 S.E.2d 434 (1981)

Sue Higgins STROUPE
v.
Stephen Hillard STROUPE.

No. 103.

Supreme Court of North Carolina.

January 6, 1981.

Hatcher, Sitton, Powell & Settlemyer, P. A., by Douglas F. Powell, Morganton, for plaintiff.

Stephen T. Daniel, Jr., Morganton, for defendant.

BRITT, Justice.

While numerous questions are suggested by this appeal, we think there are two questions which are dispositive: (1) Was the 8 February 1977 judgment void? (2) If so, has defendant lost his right to attack the judgment? We answer the first question yes and the second question no.

G.S. § 7A-192 provides in pertinent part:

Any district judge may hear motions and enter interlocutory orders in causes regularly calendared for trial or for the disposition of motions, at any session to which the district judge has been assigned to preside. The chief district judge and any district judge designated by written order or rule of the chief district judge, may in chambers hear motions and enter interlocutory orders in all causes pending in the district courts of the district, including causes transferred from the superior court to the district court under the provisions of this chapter....

The quoted statute makes it clear that the authority of a district judge, other than the chief district judge, to hear motions and enter interlocutory orders in cases pending in the district court is a special authority which is limited by statute. See Austin v. Austin, 12 N.C.App. 286, 183 S.E.2d 420 (1971). Under the provisions of the first portion of the quoted statute, before a district court judge, other than the chief district judge, may hear motions and enter interlocutory orders at any session of district court in cases calendared for trial or hearing at such session, he must be first assigned by the chief district judge under the provisions of G.S. § 7A-146 to preside at such session. Austin v. Austin, supra. Chambers matters may be heard by the chief district judge at any time and place within the district, but other district judges have no authority to hear chambers matters out of session except upon written order or rule of the chief district judge. Bowen v. Hodge Motor Co., 29 N.C.App. 463, 224 S.E.2d 699 (1976), rev'd. on other grounds, 292 N.C. 633, 234 S.E.2d 748 (1977). See also Jim Walter Homes, Inc. v. Peartree, 28 N.C.App. 709, 222 S.E.2d 706 (1976).

This court takes judicial notice of the fact that Judge Martin was not the chief judge of the 25th Judicial District on 7 February 1977. The record before us establishes that he had not been assigned by the chief district judge to preside over a session of the court in Burke County on said date and he was not authorized by order or rule entered by the chief judge to hear motions and enter interlocutory orders on said date. The judgment in question was interlocutory.

Since the district courts are comparatively new in our state, there have been very few rulings by the appellate division relating to jurisdiction and whether the order or judgment entered when the court has no jurisdiction is a nullity or is merely irregular. However, we think that decisions of this court relating to powers of special and emergency judges of the superior court under the former practice are instructive.

In Lewis v. Harris, 238 N.C. 642, 78 S.E.2d 715 (1953), an emergency judge entered an order in a case when he was not sitting in the county in which the action was pending but he was holding court in the district. This court held that the order was a nullity and that an objection to such lack of jurisdiction may be made at anytime during the progress of the action, citing numerous decisions of this court. In the opinion, Justice Winborne quoted from Burroughs v. McNeill, 22 N.C. 297, 301 (1839), as follows:

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. 238 N.C. at 646, 78 S.E.2d at 717.

Justice Winborne further quoted from Branch v. Houston, 44 N.C. 85, 88 (1852), in which Justice Pearson observed:

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, (out of necessity) the court may, on plea, suggestion, motion, or ex mero motu, where the defect of jurisdiction is apparent, stop the proceedings. 238 N.C. at 646, 78 S.E.2d at 717-18.

The judgment from which defendant now appeals was void, and remains void, for the simple reason that Judge Martin was utterly without jurisdiction to proceed in the matter. See generally 2 McIntosh North Carolina Practice and Procedure § 1713 (2d ed. 1956). A void judgment is not a judgment at all, and it may always be treated as a nullity because it lacks an essential element of its formulation. See Clark v. Carolina Homes, Inc., 189 N.C. 703, 128 S.E. 20 (1925).

In Carter v. Rountree, 109 N.C. 29, 32, 13 S.E. 716, 717 (1891), Chief Justice Merrimon aptly observed that

A void judgment is one that has merely semblance, without some essential element or elements, as when the court purporting to render it has not jurisdiction.

* * * * * *

A void judgment is without life or force, and the court will quash it on motion, or ex mero motu. Indeed, when it appears to be void, it may and will be ignored everywhere, and treated as a mere nullity. (Emphasis added.)

It follows, therefore, that in such instances, collateral attack is a permissible manner of seeking relief.

We conclude that the Court of Appeals misapprehended the matter before it in the present case. An absence of jurisdiction does not comport with the concept of a "mere informalit[y]." Indeed, it strikes at the very foundation of the court's authority and ability to take action in matters which come before it.

Furthermore, we are unable to agree that defendant has acted in such a manner as to raise an estoppel. While it is true that defendant did not perfect his appeal, the record indicates that the action was not taken because of an agreement to vacate the order in question. It appears to us that from the very beginning of this matter, defendant's counsel acted in a reasonable manner to safeguard the interests of his client. We find no basis upon which to conclude that the principles of estoppel ought to apply.

The decision of the Court of Appeals is

Reversed.