Blalock, In re

• Decision Date: 02 May 1951
• Docket Number: No. 92,92
• Court: North Carolina Supreme Court
• Parties: , 25 A.L.R.2d 818 In re BLALOCK.

Page 848

64 S.E.2d 848

233 N.C. 493, 25 A.L.R.2d 818

In re BLALOCK.

No. 92

Supreme Court of North Carolina.

May 2, 1951

Narvel J. Crawford, Asheville, for petitioner appellee.

R. R. Williams, Robert Williams, Jr., Asheville, for appellants.

Drury B. Thompson, Raleigh, for State Board of Public Welfare as amicus curiae.

WINBORNE, Justice.

The sole assignment of error presented on this appeal is predicated upon exception to the judgment and the signing of it. Such assignment of error raises only the questions as to (1) whether the facts found by the judge of the Domestic Relations Court of Buncombe County, North Carolina, and reiterated by the judge of the Superior Court on appeal, support the judgment from which appeal is taken, and (2) whether error in matters of law appears upon the face of the record. Culbreth v. Britt Corp., 231 N.C. 76, 56 S.E.2d 15, and cases cited. See also Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351; State v. Black, 232 N.C. 154, 59 S.E.2d 621; Rice v. Wachovia Bank & Trust Co., 232 N.C. 222, 59 S.E.2d 803; Smith v. McDowell Furniture Co., 232 N.C. 412, 61 S.E.2d 96; Halifax Paper Co. v. Roanoke Rapids Sanitary Dist., 232 N.C. 421, 61 S.E.2d 378; Johnson v. Barham, 232 N.C. 508, 61 S.E.2d 374; Hoover v. Crotts, 232 N.C. 617, 61 S.E.2d 705; Weaver v. Morgan, 232 N.C. 642, 61 S.E.2d 916; Gibson v. Central Mfrs.' Mut. Ins. Co., 232 N.C. 712, 62 S.E.2d 320; Perkins v. Sykes, 233 N.C. 147, 63 S.E.2d 133, and numerous other cases.

In the light of the record, and facts found by the court, the movants, Mr. and Mrs. Robert K. McGowen, raise two questions, stated in reverse order: (1) Does the Domestic Relations Court of Buncombe County, North Carolina, have jurisdiction over the persons of movants? (2) Does said court have jurisdiction over the child Deanna Blalock, the subject of the action, or proceeding? Both questions are answered in the affirmative.

As to the first question: Jurisdiction over the person of a defendant can be acquired only in two ways: (1) By service of process upon him, whereby he is brought into court against his will; and (2) by his voluntary appearance and submission. 3 Am.Jur. 784. G.S. § 1-103.

Concededly, in the case in hand, process issued to Mr. and Mrs. McGowen was not served on them. It remains, therefore, to inquire into the effect of their appearance.

An appearance may be either general or special. The distinction between the two is not so much in the manner in which, or the proceeding by which, the appearance is made as, in the purpose and the effect of an appearance. 'The test * * * is the relief asked; the law looking to its substance, rather than to its form. If the appearance is in effect general, the fact that the party styles it a special appearance will not change its real character. * * * The question always is what a party has done, and not what he intended to do.' Scott v. Mutual Reserve Fund Life Ass'n, 137 N.C. 515, 50 S.E. 221, 222; Woodard v. Tri-State Milling Co., 142 N.C. 100, 55 S.E. 70; Dailey Motor Co. v. Reaves, 184 N.C. 260, 114 S.E. 175; Shaffer v. Bank, 201 N.C. 415, 160 S.E. 481; Buncombe County v. Penland, 206 N.C. 299, 173 S.E. 609; see also 3 Am.Jur. 782; McIntosh N. C. P. & P., 323.

A special appearance by a defendant is for the purpose of testing the jurisdiction of the court over his person. Scott v. Mutual Reserve Fund, Life Ass'n, supra; Dailey Motor Co. v. Reaves, supra; Denton v. Vassiliades, 212 N.C. 513, 193 S.E. 737; Williams v. Cooper, 222 N.C. 589, 24 S.E.2d 484. See also 3 Am.Jur. 782, McIntosh N. C. P. & P., 323.

An appearance merely for the purpose of objecting to the lack of any service of process or to a defect in the process or in the service of it, is a special appearance. In such case the defendant does not submit his person to the jurisdiction of the court. 3 Am.Jur. 783. On the other hand, a general appearance is one whereby the defendant submits his person to the jurisdiction of the court by invoking the judgment of the court in any manner on any question other than that of the jurisdiction of the court over his person. 3 Am.Jur. 782, 6 C.J.S., Appearances, § 22, p. 66; McIntosh N. C. P. & P., 323. Scott v. Mutual Reserve Fund Life Ass'n, supra; Dailey Motor Co. v. Reaves, supra.

A general appearance waives any defects in the jurisdiction of the court for want of valid summons or of proper service thereof. Dailey Motor Co. v. Reaves, supra; Bank of Pinehurst v. Derby, 215 N.C. 669, 2 S.E.2d 875; Four County Agricultural Credit Corp. v. Satterfield, 218 N.C. 298, 10 S.E.2d 914; Williams v. Cooper, 222 N.C. 589, 24 S.E.2d 484; Wilson v. Thaggard, 225 N.C. 348, 34 S.E.2d 140.

Indeed, in Williams v. Cooper, supra, 222 N.C. 589, 24 S.E.2d 487, in opinion by Barnhill, J., it is said: 'An objection that the court has no jurisdiction of the subject matter of the action is considered in law as taken to the merits and not merely to the jurisdiction of the court over the person of the defendant and an appearance for the purpose of entering such objection is, in fact, a general appearance which waives any defect in the jurisdiction arising either from want of service on defendants or from a defect therein.' See cases there cited.

Applying these principles to the case in hand, if the movants had, as is said in Dailey Motor Co. v. Reaves, supra, confined their motion to dismiss for want of jurisdiction over their persons, all would have been well with them, but when they asked the court to adjudge as to want of jurisdiction over the subject of the action, they converted their special appearance into a general one. It follows, therefore, that the movants have waived any defect in the jurisdiction arising for want of service on them,--and they are in court. Williams v. Cooper, supra.

This brings us to the second question: As to whether the Domestic Relations Court of Buncombe County, North Carolina, has jurisdiction over the child, Deanna Blalock, the subject of the proceeding.

The establishment of Domestic Relations Courts was authorized, and the machinery therefor provided by the General Assembly of 1929. See P.L.1929, Chapter 343. While the act as originally passed did not apply to Buncombe County, it was made applicable thereto by an amendatory act--Chapter 208 of P.L.1941. The act authorizing the establishment of such court, as amended from time to time, became sub-chapter IV of Chapter 7 of General Statutes entitled 'Courts'. And the General Statutes became effective 31 December, 1943, and have been in effect since then.

Section 3 of Act of 1929, now G.S. § 7-103, provides, among other things, that Domestic Relations Courts, where established, shall have, and be vested with all the power, authority, and jurisdiction theretofore vested in the juvenile courts of North Carolina,--said power, authority, and jurisdiction being as fully vested in the Domestic Relations Court as if therein particularly set forth in detail; and in addition thereto such Domestic Relations Courts shall have exclusive original jurisdiction over, among others, '(c) All cases involving the custody of juveniles, except where the case is tried in Superior Court as a part of any divorce proceeding'. See In re Morris, 224 N.C. 487, 31 S.E.2d 539, and Id., 225 N.C. 48, 33 S.E.2d 243.

What then are the 'power, authority, and jurisdiction' given to juvenile courts? The Juvenile Court Act, enacted by the General Assembly of 1919, Chapter 97 of P.L.1919, later becoming Article 2 of Chapter 90 of the Consolidated Statutes, on the subject 'Child Welfare', and now Article 2 of Chapter 110 of the General Statutes, on the same subject, provides that the Superior Courts shall have exclusive original jurisdiction of any case of a child less than sixteen years of age residing in or being at the time within the respective districts 'who is in such condition or surroundings or is under such improper or insufficient guardianship or control as to endanger the morals, health, or general welfare of such child'. This jurisdiction when obtained in the case of any child shall continue for the purposes of the statute on 'Child Welfare' during the minority of the child, unless a court order be issued to the contrary. G.S. § 110-21. State v. Coble, 181 N.C. 554, 107 S.E. 132; In re Coston, 187 N.C. 509, 122 S.E. 183; In re Morris, supra. See also Phipps v. Vannoy, 229 N.C. 629, 50 S.E.2d 906.

This section of the statute, G.S. § 110-21, also imposes upon the court the constant duty to give to each child subject to its jurisdiction such oversight and control in the premises as will conduce to the welfare of such child and to the best interest of the State. In re Morris, supra.

And for the purpose of hearing cases coming within the provisions of the statute the General Assebly established in each county of the State a separate part of the Superior Court of the district, such part to be called 'The Juvenile Court' of the particular county, and appointed and authorized the Clerk of Superior Court of each county to act as judge of the Juvenile Court in the hearings of such cases within such county. G.S. § 110-23.

The express intention of this statute is 'that in all proceedings under its provisions the court shall proceed upon the theory that a child under its jurisdiction is the ward of the state and is subject to the discipline and entitled to the protection which the court should give such child under the circumstances disclosed in the case'. G.S. § 110-24.

Moreover, any order or judgment made by the court in the case of any child shall be subject to such modification from time to time as the court may consider to be for the welfare of the child, except in certain cases not pertinent here. G.S. § 110-36. In re Morris, supra; see also State v. Burnett, 179 N.C. 735, 102 S.E. 711; In re Coston, supra.

The procedure for initiating a proceeding and for notice or summons to the parent is prescribed in the statute G.S. § 110-25 to G.S. §...