Burgess v. Gibbs

• Citation: 262 N.C. 462,137 S.E.2d 806
• Decision Date: 23 September 1964
• Docket Number: No. 31,31
• Parties: Donald Luther BURGESS, by his Next Friend Theodore Burgess, v. Hugh GIBBS.
• Court: North Carolina Supreme Court

Page 806

137 S.E.2d 806

262 N.C. 462

Donald Luther BURGESS, by his Next Friend Theodore Burgess, v. Hugh GIBBS.

No. 31

Supreme Court of North Carolina.

Sept. 23, 1964

Hamrick & Hamrick by J. Nat Hamrick, Rutherfordton, for plaintiff appellant.

Meekins, Packer & Roberts, by Landon Roberts, Asheville, for defendant appellee.

PARKER, Justice.

Among other defenses, the answer of the defendant alleges as a plea in bar to plaintiff's action his immunity to suit at common law by plaintiff in this case and his nonliability under the provisions of G.S. § 97-9 and G.S. § 97-10.1 of the N. C. Workmen's Compensation Act.

A universal principle as old as the law is that the proceedings of a court without jurisdiction of the subject matter are a nullity. High v. Pearce, 220 N.C. 266, 17 S.E.2d 108. If a court finds at any stage of the proceedings it is without jurisdiction, it is its duty to take notice of the defect and stay, quash or dismiss the suit. In re Davis v. Custody, 248 N.C. 423, 103 S.E.2d 503. '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 proceeding.' Branch v. Houston, 44 N.C. 85.

When the trial judge in the absence of the jury heard and decided all questions relating to the court's jurisdiction to entertain the instant action, he followed the sound rule that every court necessarily has inherent judicial power to inquire into, hear and determine the questions of its own jurisdiction, whether of law or fact, the decision of which is necessary to determine the questions of its jurisdiction. Jones v. Standard Oil Co., 202 N.C. 328, 162 S.E. 741; Miller v. Roberts, 212 N.C. 126, 193 S.E. 286; Dellinger v. Clark, 234 N.C. 419, 67 S.E.2d 448; Gilbert v. David, 235 U.S. 561, 35 S.Ct. 164, 59 L.Ed. 360; Prack v. Weissinger, 4 Cir., 276 F.2d 446; Murphy v. Campbell Soup Co., D.C., 40 F.2d 671; Gill v. Sovereign Camp, W. O. W., 209 Mo. App. 63, 236 S.W. 1073; Dolese Bros. v. Tollett, 162 Okl. 158, 19 P.2d 570; Bridges v. Wyandotte Worsted Co., 243 S.C. 1, 132 S.E.2d 18; Brenner v. Great Cove Realty Co., 6 N.Y.2d 435, 190 N.Y.S.2d 337, 160 N.E.2d 826; 21 C.J.S. Courts § 113, p. 174.

In Bridges v. Wyandotte Worsted Co., supra, the Court said:

'The issue of jurisdiction is basically one of law. It involves the determination by the court of its right to proceed with the litigation. A decision of this question by the court deprives a litigant of no right to a jury trial of the issue of liability because, if the court has no jurisdiction, the litigants have no rights which they may assert in that court. The right to have a jury pass upon the controverted factual issues must of necessity relate to the assertion of the right of the litigant which has been allegedly violated, which presupposes a court having jurisdiction to grant the relief sought. The determination of the jurisdictional question by the court is not a denial of any constitutional right of a litigant to a jury trial, but simply a determination of the forum in which those rights may properly be asserted. The decision of the question of whether the court has jurisdiction is a preliminary one to the determination of the merits of the cause, and is for the court to decide.'

Young v. Mayland Mica Co., 212 N.C. 243, 193 S.E. 285, was an action to recover damages for an alleged wrongful death. Defendant averred a plea in bar on the ground that the Industrial Commission had exclusive jurisdiction by virtue of the N. C. Workmen's Compensation Act. On the question of jurisdiction there was conflicting evidence. This Court said: 'On this conflicting evidence it was proper for the fact to be determined by submission of an issue to the jury.' However, the Court does not say this was necessary.

In Gilbert v. David, supra, the district court, after hearing testimony from both parties on the question of plaintiff's residence, dismissed the suit on the sole ground of want of jurisdiction. It was contended that the court erred in not submitting the issue of jurisdiction to the jury. The United States Supreme Court said: 'But while the court might have submitted the question to the jury, it was not bound to do so; the parties having adduced their testimony, pro and con, it was the privilege of the court, if it saw fit, to dispose of the issue upon the testimony which was fully heard upon that subject.'

Jurisdictional questions arising upon motions to quash the service of process on supposed agents of foreign corporations have repeatedly been held by us to present questions for the court. Israel v. Baltimore & O. R. R., 262 N.C. 83, 136 S.E.2d 248; Farmer v. Ferris, 260 N.C. 619, 133 S.E.2d 492; Dumas v. Chesapeake & Ohio R. R., 253 N.C. 501, 117 S.E.2d 426; Brown v. Tennessee Coal, Iron & R. Co., 208 N.C. 50, 178 S.E. 858; Blades Lumber Co. v. Finance Co., 204 N.C. 285, 168 S.E. 219.

Plaintiff's assignments of error to the court's findings of fact are overruled, because an examination of the evidence in the record before us shows that all challenged findings of fact are supported by competent evidence. Consequently, the challenged findings of fact are binding and conclusive upon us, notwithstanding if there be evidence contra. Farmer v. Ferris, supra; Blades Lumber Co. v. Finance Co., supra; Brown v. Tennessee Coal, Iron & R. Co., supra; Strong's N.C. Index, Vol. 1, Appeal and Error, pp. 138-9.

Plaintiff's assignments of error to the court's conclusions...