Hall v. . Artis , 186 N.C. 105 ( 1923 )

Adams, J.

Tbe plaintiffs alleged that tbe land described in tbe complaint was devised by Daniel Artis to Henry Artis and charged with tbe payment of one-fourtb tbe amount of a pecuniary legacy bequeathed by tbe testator to Clara Edwards; that in due time tbe legatee brought suit to subject tbe land to tbe payment of this charge, and obtained an order of sale; that tbe defendant Settle Artis bought tbe property under an agreement that be should bold it in trust for Henry Artis and bis children-until repaid tbe purchase money, and that tbe full amount of tbe purchase price had been repaid him from tbe annual rents. Tbe object of tbe action is to establish a parol trust and to have tbe land sold for partition among tbe plaintiffs and tbe defendants as tenants in common.

The' defendants- contend that the clerk had no jurisdiction of an action or proceeding instituted to establish a parol trust; that the jurisdiction of the Superior Court was entirely derivative, and that the judgment dismissing the action should therefore be affirmed. On the other hand, the plaintiffs insist that the judgment is not erroneous even if it be granted that the clerk was without jurisdiction.

There is a general rule, frequently approved in our decisions, that if an inferior court or tribunal has no jurisdiction of a cause, an appeal from its decision confers no jurisdiction upon the appellate court. 3 C. J., 366, sec. 123; Gordon v. Sanderson, 83 N. C., 1; Boyett v. Vaughan, 85 N. C., 364; Raisin v. Thomas, 88 N. C., 148; Markham v. Hicks, 90 N. C., 1; Robeson v. Hodges, 105 N. C., 49; Cheese Co. v. Pipkin, 155 N. C., 395; McLaurin v. McIntyre, 167 N. C., 350; Holmes v. Bullock, 178 N. C., 376; Commissioners v. Sparks, 179 N. C., 581; Sewing Machine Co. v. Burger, 181 N. C., 241.

But the application of this rule is not unlimited. In Robeson v. Hodges, supra, it is said: “In Capps v. Capps, 85 N. C., 408, it is held that when a case which is properly cognizable in the Superior Court, but erroneously brought before the clerk, gets into the Superior Court, by appeal or otherwise, the latter court will amend the summons and treat the action as if originally brought in the Superior Court, and proceed; but when the action is properly triable in the Probate Court, it is error in the Superior Court, on appeal, to allow the complaint to be amended by engrafting new matter, cognizable only in the Superior Court at term”; and in Elliot v. Tyson, 117 N. C., 114, Clark, J., stated that such amendment of process may be presumed. • To the same effect are McLean v. Breece, 113 N. C., 391; Baker v. Carter, 127 N. C., 92; Ewbank v. Turner, 134 N. C., 77; Ryder v. Oates, 173 N. C., 569. Referring to the question, in Anderson’s case, 132 N. C., 244, Montgomery, J., said: “Although the proceedings originally had before the clerk were a nullity, for the reasons already pointed out, yet when the matter got into the Superior Court by appeal, that court then acquired jurisdiction. Roseman v. Roseman, 127 N. C., 494; Ledbetter v. Pinner, 120 N. C., 455; Faison v. Williams, 121 N. C., 152.” See, also, C. S., sec. 637.

The defendants further contend that the plaintiffs should have sought relief by motion in the original cause, and not by an independent action. We do not consider the question whether the Superior Court had the legal right to treat the proceeding as a motion, because, as we understand the record, a final judgment had been rendered in the original cause, and the plaintiffs’ right to insist upon the execution of the parol trust arose after the purchaser had been reimbursed the amount of his expenditure. Under these circumstances, the plaintiffs could resort to an independent equitable action. Smith v. Fort, 105 N. C., 446; McLaurin v. McLaurin, 106 N. C., 331; Bunker v. Bunker, 140 N. C., 18.

We are of opinion tbat tbe Superior Court bad jurisdiction, and tbat tbe judgment dismissing tbe action should be set aside. Tbe judgment is therefore

Eeversed.