Town of Hudson v. Fox

127 S.E.2d 556 (1962) 257 N.C. 789

TOWN OF HUDSON, a Municipal Corporation
v.
O. P. FOX and wife, Ida Fox.

No. 313.

Supreme Court of North Carolina.

October 17, 1962.

L. H. Wall, A. R. Crisp, Lenoir, for petitioner appellant.

Hugh M. Wilson, Lenoir, for respondents appellees.

DENNY, Chief Justice.

The petitioner assigns as error the judgment entered on 5 April 1962, setting aside the order of the Clerk of the Superior Court entered on 18 August 1961. The petitioner argues and contends that the Superior Court was without jurisdiction to set the Clerk's order aside.

In the case of Plemmons v. Cutshall, 230 N.C. 595, 55 S.E.2d 74, this Court, speaking through Barnhill, J., later, C. J., said: "The clerk is but a part of the Superior Court. Williams v. Dunn, 158 N.C. 399, 74 S.E. 99; Bynum v. Fidelity Bank [of Durham], 219 N.C. 109, 12 S.E.2d 898. Whenever a special proceeding begun before him is for any ground whatever, sent to the Superior Court before the judge, the judge has jurisdiction. G.S. 1-276; McDaniel v. Leggett, 224 N.C. 806, 32 S.E.2d 602, and cases cited."

Likewise, in Perry v. Bassenger, 219 N.C. 838, 15 S.E.2d 365, Stacy, C. J., said: "The jurisdiction of the Superior Court is not derivative in matters of this kind [a petition for partition] originating before the clerk. He is but a part of the same court. Cf. Keen v. Parker, 217 N.C. 378, 8 S.E.2d 209. For this reason it is provided by C.S. § 637 [now G.S. § 1-276], that whenever a civil action or special proceeding begun before the clerk of a Superior Court is ``for any ground whatever' sent to the Superior Court before the judge, the judge shall have jurisdiction; and it is his duty, upon request of either party, to proceed to hear and determine all matters in controversy in such proceeding. It has been held that even when the proceeding originally had before the clerk is void for want of jurisdiction, the Superior Court may yet proceed in the matter. Williams v. Dunn, 158 N.C. 399, 74 S.E. 99; In re Anderson, 132 N.C. 243, 43 S.E. 649."

There is nothing in this record tending to show that the respondents ever received any notice whatever with respect to the survey, the amendment to the petition, the order appointing the commissioners, or the report of the commissioners. Whether this was due to the fault of the attorneys, who filed the original request for the survey, to notify respondents, does not appear. Even so, the order was set aside in the discretion of the trial judge and no abuse of his discretion has been shown or even suggested.

The petitioner's assignment of error is overruled and the judgment of the court below is

Affirmed.