Brittain v. Mull

• Decision Date: 31 October 1884
• Parties: ARA BRITTAIN v. S. E. MULL, and others.
• Court: North Carolina Supreme Court

91 N.C. 498

ARA BRITTAIN

v.S. E. MULL, and others.

Supreme Court of North Carolina.

October Term, 1884.

PROCEEDING for dower heard at Spring Term,

1883, of BURKE Superior Court, before Gudger, J.

The plaintiff sues as the widow of James Brittain, who died intestate in October of 1876, and the defendants are his heirs-at-law. The plaintiff brought her action in the superior court before the clerk thereof, to obtain dower in the lands of her deceased husband. To this end she filed her petition and the defendants answered the same. Issues of fact were raised by the pleadings, and the clerk transferred the case to the civil issue docket for the trial of the issues at the ensuing term of the superior court.

The court, upon application of the defendants, allowed them to substitute an answer for the original one, which, as was suggested, had been lost or mislaid It seems, however, that it was afterwards found, as it appears in the record.

At a term subsequent to that at which the issues were tried, the plaintiff moved,

“1. To strike papers from the file.

2. To remand cause to the probate court.

3. To have dower assigned to the plaintiff.”

The court denied these motions, and the plaintiff appealed to this court.

Messrs. Sinclair and Batchelor & Devereux, for plaintiff .

Mr. G. N. Folk, for defendants .

MERRIMON, J., after stating the above.

It should be observed that section 17, of article four, of the constitution of 1868, prescribing certain jurisdiction of the clerks of the superior courts, is not retained in the constitution as amended by the convention of 1875. Such clerks now have no jurisdiction prescribed by the constitution. And the office or place of judge of probate is abolished by THE CODE, §102. There is now no judge of probate, so denominated.

So that, the special jurisdiction of clerks of the superior courts, and as well, their general duties as clerks, are now prescribed by statute, except so far as general principles of law, not inconsistent with such statutes, may apply and govern them.

Their special jurisdictional duties and power are distinct and separate from their general duties as clerks of the courts to which they belong; but in respect to their jurisdictional functions, they are in convenient relation to their respective courts. Indeed, they are in effect constituted courts of limited jurisdiction to the extent that jurisdictional functions are conferred upon them apart from their general duties as clerks, and as such courts, they are in immediate relation with the superior courts of which the clerk so exercising jurisdictional power is clerk.

The purpose of the statute seems to be to charge such clerks with such special jurisdictional authority, in order to avoid a multiplicity of officers, and facilitate the decisions of questions of law arising in matters before them, by a judge of the superior court, and the trial of issues of fact so arising, under the supervision of such judge, and as well to economize in respect to time and costs.

The jurisdictional powers thus conferred on clerks apart from their general duties, is confined mainly, though not entirely, to matters of probate. THE CODE §103 prescribes such jurisdiction; § 108 prescribes the powers the clerk may exercise in aid of his jurisdiction; § 112 prescribes the records he must keep in books separate and distinct from the records of the superior court; and § 116 prescribes how issues of fact raised in matters so before the clerk shall be tried in term time, and questions of law so decided by the clerk and excepted to, shall be decided by the judge in or out of term time.

If issues of fact are joined before the clerk in such matters, these and the pleadings upon which they arise must be transferred (§ 116,) to the superior court, that is, to another jurisdiction, in such respect to be there tried. And when the issues are so tried, the court remands the same and the pleadings or papers with the findings of the jury upon them, and the clerk will then proceed with the matter according to law. This provision has reference to issues of fact.

If the clerk in any such proceeding shall in matters of law make a decision excepted to in a proper way, the party excepting may appeal (§ 116) to the judge of the superior court in or out of term. The judge will hear such appeal and decide the questions of law presented by it, and then remand the matter, including his decision, to the clerk, unless his decision shall be excepted to and an appeal be taken to this court. This court will decide the questions presented by the appeal so taken, and direct the judge below, if his decision shall be affirmed, to remand the matter to the clerk, or if his decision shall be reversed or modified, direct him to reverse or modify his decision accordingly, and then remand the matter.

The statute does not prescribe how the judge shall send the issues found in term, or his decisions made in or out of term, to the clerk; but general principles of law warrant the procedure we have indicated above.

It will be observed that what we have said applies to matters wherein the clerk exercises jurisdictional authority as a separate tribunal, apart from his general duties as clerk of the superior court.

But the clerk of the superior court is charged with the exercise of important judicial powers under the Code of Civil Procedure, in the exercise of which he represents and acts as and for the court. Indeed, his action in this respect, is that of the court; the court exercises its power through him, supervising and controlling his action in the way prescribed by the statute. Certain of the court's powers, specified, are exercised by the clerk, and his action, when taken, stands and prevails as the action of the court, unless a party interested shall except thereto in any material respect, in which case, the judge interposes in the way prescribed by the statute. The clerk is allowed to do certain things in the course of procedure in the action that prevails, unless the judge shall set his action aside, or correct and modify it in the case and manner prescribed by the statute.

THE CODE, § 132, provides that when jurisdiction or power is conferred in respect to the superior court, or duties are imposed, the term ““court” implies the clerk of that court, unless otherwise especially stated, or reference is made to a regular term of the court, in which case the judge alone is meant.

THE CODE, § 251, likewise provides, that the clerk shall have jurisdiction to hear and decide all questions of practice and procedure, and all other matters whereof jurisdiction is given to the superior court, unless the judge of that court, or the court at a regular term thereof be referred to; but § 252 allows any party to appeal from any decision of the clerk in such respects, without any undertaking for costs, to the judge, and his decision at once prevails as the act of the court. That is, the clerk acts as and for the court, unless the judge is specially required to act, or the action is to be taken in term time, in which case the judge is to act for himself. What is done by the...