Baker v. Varser

• Decision Date: 15 January 1954
• Docket Number: No. 601,601
• Citation: 239 N.C. 180,79 S.E.2d 757
• Court: North Carolina Supreme Court
• Parties: BAKER, v. VARSER et al.

Page 757

79 S.E.2d 757

239 N.C. 180

BAKER, v. VARSER et al.

No. 601

Supreme Court of North Carolina.

Jan. 15, 1954

R. P. Upchurch, Raleigh, for plaintiff appellee.

Bennett H. Perry, Henderson, for defendants appellants.

WINBORNE, Justice.

While appellants present on this appeal numerous other assignments of error, decision here turns upon the one based on exceptions to the orders involved, on the ground that, at the time and under the existing situation, Judge Harris did not have jurisdiction to enter them. If he did not have such jurisdiction, and it is held that he did not, his action in signing the orders is in law a nullity, and must be so declared. For the jurisdiction of the Supreme Court is derivative. Shepard v. Leonard, 223 N.C. 110, 25 S.E.2d 445.

The jurisdiction of a regular judge of the Superior Court over the subject matter of an action depends upon the authority granted to him by the Constitution and laws of the State, 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 Lewis v. Harris, 238 N.C. 642, 78 S.E.2d 715, and cases cited; also Spaugh v. City of Charlotte, N.C., 79 S.E.2d 748.

In Burroughs v. McNeill, supra, it is stated, in opinion by Gaston, J., that: '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 is apparent, stop the proceedings.'

In this connection the Court will take judicial notice of the fact that at the time of the signing of the orders in question, the Honorable W. C. Harris was the regularly elected judge of, and by rotation was assigned to hold the terms of the Superior Court of the yseventh Judicial District in the eastern division of North Carolina; that he was not then assigned to hold any term of Superior Court, regular or special, in New Hanover, or any other county, in the Eighth Judicial District in the eastern division of North Carolina; and that New Hanover County, in which this action was instituted is located in the Eighth Judicial District aforesaid. General Statutes, Chap. 7, subchapter II, Article 7. Greene v. Stadiem, 197 N.C. 472, 149 S.E. 685.

And the record on this appeal discloses the fact that the orders in question were signed 'at chambers * * * at Wilmington, N. C.' In this respect the Court will take notice of the fact, also, that Wilmington, North Carolina, is situated in the county of New Hanover.

In this situation, did Judge Harris have jurisdiction to entertain a petition for, and to grant a writ of mandamus in the instant action? The Constitution and laws of North Carolina say 'No'.

The Constitution of North Carolina declares: That the judicial power of the State, other than a court for the trial of impeachments, a Supreme Court, courts of justices of the peace, and such other courts inferior to the Supreme Court as may be established by law, shall be vested in Superior Courts. Art. IV, Sec. 2.

In respect to 'Judicial districts for Superior Courts', the Constitution, Art. IV, Sec. 10, declares that 'The General Assembly shall divide the State into a number of judicial districts * * * and shall provide for the election of one or more Superior Court judges for each district'; and that 'There shall be a Superior Court in each county at least twice in each year * * *.'

And in respect to 'Judicial districts; rotation * * * assignment of Superior Court judges by Chief Justice', the Constitution, Art. IV, Sec. 11, declares that 'Each judge of the Superior Court shall reside in the district for which he is elected'; that 'The General Assembly may divide the State into a number of judicial divisions'; that 'The judges shall preside in the courts of the different districts within a division successively; but no judge shall hold all the courts in the same district oftener than once in four years'; and that 'The Chief Justice, when in his opinion the public interest so requires, may assign any Superior Court judge to hold one or more terms of Superior Court in any district.'

These provisions of the Constitution have been implemented by enactments of the General Assembly: (1) dividing the State into Twenty-one judicial districts for each of which a judge shall be chosen in the manner provided by law, G.S. § 7-40; (2) numbering the districts first to twenty-first, composed of designated counties respectively, G.S. § 7-68; (3) dividing the State into two judicial divisions, the Eastern and Western Judicial Divisions,--the counties included in judicial districts from one to ten, both inclusive, to constitute the Eastern Division, and those in judicial districts from eleven to twenty-one, both inclusive, to constitute the Western Division, G.S. § 7-69; (4) directing that the judges of the Superior Court shall hold the courts of the several judicial districts successively, according to a specified order and system--the judges resident in the Eastern Judicial Division to hold the courts in that division, and the judges in the Western Judicial Division to hold the courts in that division, for spring and fall terms successively,--the judge riding any spring circuit to hold all the courts which fall between January and June, both inclusive, and the judge riding any fall circuit to hold all the courts which fall between July and December, both inclusive, G.S. § 7-74; also West v. F. W. Woolworth Co., 214 N.C. 214, 198 S.E. 659; and (5) requiring that every judge of the Superior Court shall reside in the district for which he is elected; that the judges shall preside in the courts of the different districts successively, but no judge shall hold the courts in the same district oftener than once in four years; and that the Chief Justice, when in his opinion the public interest so requires, may assign any Superior Court judge to hold one or more terms of Superior Court in any district. G.S. § 7-46, as amended by 1951 Session Laws Chap. 471, Sec. 2.

Moreover, the General Assembly in respect to 'Jurisdiction in vacation or at term' amended G.S. § 7-65 to read as follows: 'In all cases where the superior court in vacation has jurisdiction, and all of the parties unite in the proceedings, they may apply for relief to the superior court in vacation, or in term time, at their election. The resident judge of the judicial district and any special superior court judge residing in the district and the judge regularly presiding over the courts of...