Lewis v. Harris

78 S.E.2d 715 (1953) 238 N.C. 642

LEWIS et ux.
v.
HARRIS et al.

No. 312.

Supreme Court of North Carolina.

November 25, 1953.

George B. Riddle, Jr., New Bern, for substituted plaintiff appellant.

Lee & Hancock, New Bern, for defendant appellee.

WINBORNE, Justice.

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

The jurisdiction of an Emergency Judge over the subject matter of an action, or of a motion in the cause, depends upon the authority granted to him 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. Rhodes-Rhyne Mfg. Co., 217 N.C. 351, 8 S.E.2d 219; Edwards v. McLawhorn, 218 N.C. 543, 11 S.E.2d 562; State 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 IV, § 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, § 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, that regular judges holding the same courts would have. An emergency judge duly assigned to hold the courts of a county or judicial district shall have the same powers in the district in open court and in chambers as the resident judge or any judge regularly assigned to hold the courts of the district would have, which jurisdiction in chambers shall extend until the term is adjourned or the term expires by operation of law, whichever is later."

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

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

Indeed, the cause was before Judge Grady in Pitt County only because he as an Emergency Judge was assigned and commissioned to hold, and was holding the February Civil Term 1953 of the Superior Court of that county.

It was before him for only one purpose, and that is for hearing on the order, and notice to substituted defendants, to show cause why the temporary injunction should not be continued to the final hearing. It was before him then only as the action was constituted on the 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 the 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 the amendment to the Constitution as above set forth, and before later enactment of the General Assembly defining jurisdiction of emergency judges.

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

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

Reversed.