Balcon, Inc. v. Sadler, No. 771SC397

• Docket Nº: No. 771SC397
• Citation: 244 S.E.2d 164, 36 N.C.App. 322
• Case Date: May 16, 1978
• Court: Court of Appeal of North Carolina (US)

Page 164

244 S.E.2d 164 36 N.C.App. 322 BALCON, INC.
v.
Allen A. SADLER, d/b/a Sadler Construction Company. No. 771SC397. Court of Appeals of North Carolina. May 16, 1978.

LeRoy, Wells, Shaw, Hornthal, Riley & Shearin by Terrence W. Boyle, Elizabeth City, for plaintiff-appellant.

Pritchett, Cooke & Burch by W. W. Pritchett, Jr., Windsor, for defendant-appellee.

CLARK, Judge.

The defendant moved to dismiss on the grounds that the Superior Court of Chowan County lacked jurisdiction over both the subject matter and the person. Though the findings in the judgment relate primarily to the issue of jurisdiction over the person, the trial court concluded that it had no jurisdiction over the subject matter.

[36 N.C.App. 324] A court has jurisdiction over the subject matter if it has the power to hear and determine cases of the general class to which the action in question belongs. A court has jurisdiction over the person if it has the power to bring the person to be affected by the judgment before the court so as to give him an opportunity to be heard. 21 C.J.S. Courts § 23, pp. 36-37.

The Superior Court of Chowan County is a court of general jurisdiction. N.C.Const., Art. IV, §§ 1, 2, 12. The subject matter of the case sub judice is an account, which is a transitory action, as are contract actions in general. A court of general jurisdiction has jurisdiction over actions transitory in nature. Clearly, the trial

Page 166

court had jurisdiction over the subject matter. Gibbs v. Heavlin, 22 N.C.App. 482, 206 S.E.2d 814 (1974).

But the trial court could not exercise its subject matter jurisdiction to adjudicate the case if it did not have jurisdiction over the person of the defendant, and without such jurisdiction the action should have been dismissed.

The plaintiff and defendant were nonresidents of this State, and the action arose in Maryland. Defendant owned real estate in Chowan County; his ownership of this realty did not give the court jurisdiction over the defendant's person. The basis of the court's jurisdiction must rest on plaintiff's proceeding to attach defendant's realty under G.S. 1-440.1. The realty had no relation to the account which is the subject matter of the action. The attachment is a quasi in rem proceeding, instituted by plaintiff for the purpose of bringing the realty of the nonresident defendant under the jurisdiction of, and subject to the judgment of, the court. The attachment proceeding is ancillary and does not give the court in personam jurisdiction over the defendant. But G.S. 1-75.8(4) gives the court jurisdiction quasi in rem when "the defendant has property within this State which has been attached or has a debtor within the State who has been garnished."

The opening sentence of G.S. 1-75.8 is as follows: "A court of this State having jurisdiction of the subject matter may exercise jurisdiction in rem or quasi in rem on the grounds stated in this section. . . ." (Emphasis added.) Thus, it appears that the exercise of such jurisdiction is a matter for the discretion of the court. See Anno. 90 A.L.R.2d 1109; 20 Am.Jur.2d, Courts, §§ 93, 172; 21 C.J.S. Courts § 77(b), pp. 116-118. It is clear, however, in the case [36 N.C.App. 325] before us that the trial court found that it did not have jurisdiction, and not that it in its discretion refused to exercise it.

The foregoing statute and the case law relating to in rem jurisdiction has been based on the decisions in Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878), which for a hundred years has provided the conceptual framework for jurisdictional matters in the United States....