In re Atkinson-Clark Canal Co.

DeNNY, J.,

after stating the facts as above: The appellant contends that its petition to the Clerk of the Superior Court to have its assessments docketed as a lien upon the lands of the respective respondents was based on the law as set out in the first paragraph of Gr.S. 156-43, unaffected by the amendments thereto enacted by Chapter 180, Public Laws of 1939. Therefore, it argues and contends that there was nothing for the Clerk to pass upon, and that it was the duty of the Clerk to docket the assessments and if the respondents were dissatisfied therewith, they had the right to appeal and have the matter heard by a jury. This contention runs counter to the allegations of the petition and the prayer for relief contained therein.

It appears from the petition that the petitioner requested the Clerk of the Superior Court to pass upon and approve its acts and to declare the assessments due as shown on the Certificate of Assessment attached thereto. And it further appears from the record that the Clerk passed upon the petition as requested but declined to approve the assessments and entered judgment to that effect. Consequently, we deem it unnecessary to consider or discuss whether the procedure adopted by the petitioner was based on the law as amended in 1939, or that portion thereof which was in effect prior thereto, or both. For the question before us is not one on the merits of the cause, but on the single question as to whether the Clerk’s judgment entered on 28 February, 1950, is res judicata as to the matters alleged in the petition. Land Co. v. Guthrie, 123 N.C. 185, 31 S.E. 601.

A judgment entered by a clerk of the Superior Court in a special proceeding in which such clerk ha's jurisdiction, will stand as a judgment of the court, if not excepted to and reversed or modified on appeal, as allowed by statute. Brittain v. Mull, 91 N.C. 498; Gold v. Maxwell, 172 N.C. 149, 90 S.E. 115; Bank v. Leverette, 187 N.C. 743, 123 S.E. 68. See, also, concurring opinion in Wilson, Ex parte, 222 N.C. at page 104, 22 S.E. 2d 262.

Conceding, but not deciding, that the Clerk’s decision was erroneous, when the petitioner undertook to appeal therefrom and the appeal was dismissed in the Superior Court, and it gave notice of appeal to the Supreme Court but did not perfect the appeal, the judgment of the Clerk of the Superior Court was as final and effective as if no appeal therefrom had been attempted. Cameron v. McDonald, 216 N.C. 712, 6 S.E. 2d 497; Northcott v. Northcott, 175 N.C. 148, 95 S.E. 104; Moore v. Packer, 174 N.C. 665, 94 S.E. 449; Weeks v. McPhail, 128 N.C. 130, 38 S.E. 472. A judgment from which no appeal is taken, however erroneous, is res judicata. North Carolina R. R. v. Story, 268 U.S. 288, 69 L. Ed. 959.

The judgment of the court below is

Affirmed.