Caldwell v. Caldwell
| Decision Date | 03 June 1925 |
| Docket Number | 492. |
| Citation | 128 S.E. 329,189 N.C. 805 |
| Parties | CALDWELL v. CALDWELL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Burke County; Harding, Judge.
Action by Daniel Caldwell against Lessie Berry Caldwell. Voluntary judgment of nonsuit without notice to defendant was entered. From a judgment setting aside the judgment of nonsuit, and requiring plaintiff to show cause why he should not be attached as for contempt in failing to pay alimony, he appeals. Reversed.
Judgment of voluntary nonsuit may be entered by clerk in action in which judge of superior court in term may render such judgment.
Action for divorce. Defendant denied, by her answer, the allegations of the complaint, upon which plaintiff prayed for judgment dissolving absolutely the bonds of matrimony existing between plaintiff and defendant. Defendant thereupon applied to the superior court of Burke county for alimony, pendente lite. This application was heard, after notice to plaintiff, at August term, 1923, by his honor, James L. Webb, judge presiding at said term. Upon the facts found, it was ordered that plaintiff pay into the office of the clerk of the superior court of Burke county, on or before Saturday the 18th day of August, 1923, and on Saturday of each and every successive week thereafter during the pendency of the action the sum of $6.75 for the use and benefit of and to be paid to defendant, Lessie Berry Caldwell, for her support and expenses pending the trial of this action.
Plaintiff complied with this order, and made the weekly payments as ordered and directed therein up to and including February 9 1924. He also paid $3.25 on the payment due on February 16 1924. No other or further payments have been made by plaintiff.
On March 20, 1924, a judgment of nonsuit was entered in this action, in the following words:
"North Carolina, Superior Court, Burke County. Before the Clerk.
The plaintiff, Daniel Caldwell, having come into court, through his attorneys, Ervin & Ervin, and having submitted to a voluntary judgment of nonsuit, it is considered, ordered, and adjudged that this action be and the same is hereby dismissed. It is further ordered that the plaintiff pay the costs hereof.
Butler Giles.
Clerk of the Superior Court of Burke Co.
Plaintiff excepted to the foregoing judgment and appealed therefrom to the Supreme Court.
S. J. Ervin and S. J. Ervin, Jr., both of Morganton, for appellant.
Avery & Ervin, of Morganton, for appellee.
Plaintiff excepts to the judgment rendered by Judge Harding at October term, 1924, setting aside the judgment dismissing the action, upon a voluntary nonsuit, entered by the clerk, on March 20, 1924, upon two grounds: First, that there was no exception to or appeal from the judgment of nonsuit entered by the clerk; second, that there was no error or irregularity in the rendition of said judgment. Defendant, having set up no counterclaim in her answer, plaintiff contends that he had the right to take a voluntary nonsuit, and that by the express provision of the statute the clerk was authorized to enter such judgment at any time.
Chapter 92, Public Laws 1921, Extra Session, is entitled an act to amend certain statutes, theretofore enacted, relating to civil procedure, in regard to process and pleadings, and "to expedite and reduce the cost of litigation." Subsection 12 of section 1 of said chapter provides that:
Clerks are further authorized to enter (c) judgments the said clerks are authorized to make orders of foreclosure, for sale, and distribution of proceeds of sale, etc. See volume 3, C. S. §§ 593, 597 (a) (b) (c), 600. Judgments except those coming under (a) and (b) shall be entered only on a Monday of each month, and each Monday is a term of court for certain purposes.
Judgments entered by the clerk, as authorized by this statute, under the express provisions thereof or by necessary implication, are judgments of the superior court, and are of the same force and effect, in all respects, as if rendered in term and before a judge of the superior court. In Hill v. Hotel Co., 188 N.C. 586, 125 S.E. 266, we held that the statute as applicable to judgments by default final or by default and inquiry is an enabling act. We said, in the opinion filed by Justice Adams in that case, that we apprehend that the statute was never intended to deprive the superior court, in term, of its jurisdiction to render a judgment by default final, or default and inquiry.
And so we must hold that, as applicable to other judgments which the clerk is authorized therein to enter, the statute is an enabling act and does not deprive the superior court, in term, of its jurisdiction to render judgments, which by its provisions may also be entered by the clerk, either at any time or on any Monday of the month. The purpose and effect of the statute is to confer upon the clerk the same authority as that theretofore exercised by the judge in term with respect to judgments covered by the statute. The jurisdiction of a judge, in term, to render judgments upon voluntary nonsuits, by consent of parties to the action, upon notes, bills, bonds, stated accounts, balances struck, or other evidences of debt, within the jurisdiction of the superior court, or by default final or default and inquiry, and to make orders and decrees in actions to foreclose mortgages, etc., is not affected by the provisions of this statute. The authority of the clerk is concurrent with and additional to that of the judge, in term.
The authority of the clerk of the superior court of Burke county to enter a judgment dismissing, upon voluntary nonsuit, an action pending in said superior court, in which such judgment could be rendered in term by the judge, must be conceded. The fact that both complaint and answer had been filed, and issues joined, and the papers transmitted by the clerk to the court for the trial of the action upon the issues, did not deprive him of this authority. A judgment upon voluntary nonsuit may be entered by the clerk, at any time, in any action in which the judge, in term, may render such judgment.
The judgment in the instant case which plaintiff seeks to have set aside is not void for want of jurisdiction by the clerk of the parties or of the motion. It is not alleged that the judgment should be set aside and vacated, because of the mistake, inadvertence, surprise, or excusable neglect of the defendant. Nor are facts found which are sufficient to support an order setting aside the judgment on this ground. A motion to set aside and vacate a judgment entered by the clerk, as authorized by statute, upon this ground, may be made before and passed upon by either the judge or the clerk. From an order made by the judge, upon such motion, an appeal may be taken to this court, which has jurisdiction to pass upon and determine all matters of law or legal inference duly presented by appeal. Const. of N.C. art. 4, § 8. From an order made by the clerk, upon such motion, an appeal will lie to the judge, who shall hear and pass upon the motion, de novo. Volume 3, C. S. § 600. From an order made by the judge, upon appeal from the clerk, an appeal will lie to the Supreme Court. Duffer v. Brunson, 188 N.C. 789, 125 S.E. 619.
The judgment, entered by the clerk, in the instant case, is not erroneous. A judgment of the superior court, rendered in term by the judge, can be reviewed for error only upon appeal to the Supreme Court upon exceptions duly noted. Live Stock Co. v. Atkinson, 189 N.C. 250, 126 S.E. 610; Duffer v Brunson, supra. A decision of one judge of the superior court is not reviewable by another judge. Dockery v. Fairbanks, 172 N.C. 529, 90 S.E. 501. The power of one judge of the superior court is equal to and co-ordinate with that of another. A judge holding a suceeding term of the superior court has no power to review...
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