Ewbank v. Turner

• Decision Date: 18 December 1903
• Parties: EWBANK v. TURNER et al.
• Court: North Carolina Supreme Court

46 S.E. 508

134 N.C. 77

EWBANK v. TURNER et al.

Supreme Court of North Carolina

December 18, 1903

Appeal from Superior Court, Henderson County; B. F. Long, Judge.

Action by Fred W. Ewbank against V. E. Turner and others, composing the board of examiners of the North Carolina Dental Society. From a judgment dismissing the action for want of jurisdiction, plaintiff appeals. Action dismissed.

Davidson Bourne & Parker, Jones & Rector, and E. W. Ewbank, for appellant.

Busbee & Busbee, for appellees.

CLARK C.J.

The complaint alleges that the plaintiff graduated with distinction in the dental department of the Baltimore Medical College, an institution of high and well-recognized standing after prosecuting his studies in dentistry therein for the prescribed period of three years; that thereafter he made application to the proper authorities for license to practice dentistry in South Carolina, and after examination he was found duly proficient and qualified, and license was issued to him, under which he practiced in that state; that thereafter, on removal to this state, he made application for examination and license under our laws; that, the board not being in session, under the provision of the statute he was examined by a single member of the board, was found duly qualified and proficient, and was given a temporary license 26th January, 1902, which for certain reasons was renewed by a second temporary license till the meeting of the full board, 19th June, 1903; that under these licenses he practiced dentistry for nearly a year and a half, and built up a lucrative practice; that on 19th June, 1903, he was examined by the full board, and, though he, as he avers showed on such examination that he "possessed the necessary and required proficiency in the knowledge and practice of dentistry, and underwent a satisfactory examination, as required by the statute in such case made and provided, as will abundantly appear from an inspection of his examination papers, the said board, and the majority of the defendants composing said board, unlawfully, unjustly, and arbitrarily, and without just cause or reason, and abusing the discretion with which they were clothed by the laws of North Carolina, refused, and yet refuse, upon the repeated demands of the plaintiff, to issue and grant to him a certificate of proficiency, to which he was and is entitled, and which it was and is the duty of the defendants to issue and grant." The above is the gist of the complaint, which further avers that, by reason of such refusal to issue him a certificate of proficiency upon such examination, the defendants composing the board of examiners of the North Carolina Dental Society "thereby wrongfully, arbitrarily, unjustly, and unlawfully prevented him from engaging in the practice of dentistry in this state, to his great damage, to wit, in the sum of five thousand dollars or more," and prays for a mandamus to compel said board to issue to the plaintiff ""a certificate of proficiency in the knowledge and practice of dentistry," and that "he have such other and further relief as he may be entitled to in the premises." An answer was filed, denying that the plaintiff had passed a satisfactory examination, or was entitled thereon to a certificate of proficiency, and denying that the action of the board could be reviewed by the courts. The summons was made returnable at chambers. The plaintiff moved (1) that the court submit the issues raised by the pleadings to a jury at the next term, under the proviso in Code, § 623; (2) that the plaintiff be permitted an inspection and to take a copy of his examination papers; (3) that he be permitted to take a copy of the examination papers prepared and submitted by certain parties named, which were submitted to the board upon their examination to practice dentistry at the same time and place when the plaintiff was rejected. These motions were each refused, and the plaintiff excepted. The defendants moved to dismiss for want of jurisdiction, on the ground that this was an action for a money demand, and the summons had been made returnable before the judge at chambers. The plaintiff thereupon moved to strike out the words "to his great damage, to wit, in the sum of five thousand dollars or more." The court denied this motion upon the ground that it had no power to allow such amendment, and the plaintiff excepted. The court thereupon dismissed the action on the ground that it had no jurisdiction thereof. The plaintiff again excepted, and appealed.

When the summons in a case of which the superior court has jurisdiction is brought before the clerk, to term, or before the judge at chambers, it is equally in the superior court, and there is no defect of jurisdiction. If brought before the clerk, when it should have been brought to term, it is said in Elliott v. Tyson, 117 N. C., at page 116, 23 S.E. 103, when it gets ""into the superior court by appeal or otherwise the latter has jurisdiction of the whole cause, and can make amendment of process to give effectual jurisdiction. Such amendment will be presumed, or the Supreme Court, even, can amend the process, if necessary." Quoting McLean v. Breece, 113 N.C. 390, 18 S.E. 694; citing Capps v. Capps, 85 N.C. 408; Cheatham v. Crews, 81 N.C. 343; Robeson v. Hodges, 105 N.C. 49, 11 S.E. 263; and adding, ""Unlike the court of the justice of the peace, the clerk is really a part of the superior court, and a case wrongfully instituted before him, upon appeal, only needs an amendment of process to justify the original service." The same principle as to the jurisdiction of the superior court is recognized by chapter 276, p. 518, Laws 1887, amending section 255 of the Code (see Clark's Code [3d Ed.] § 255), and cases cited in Roseman v. Roseman, 127 N. C., at page 497, 37 S.E. 518, reaffirmed in Re Hybart's Estate, 129 N. C., at page 131, 39 S.E. 779; Ury v. Brown, 129 N.C. 271, 40 S.E. 4; In re Anderson, 132 N. C., at page 247, 43 S.E. 649; Railroad v. Stroud, 132 N. C., at page 416, 43 S.E. 913. For the same reason, if a case is before the judge at chambers, if there are issues of fact appearing upon the pleadings, the cause should not be dismissed, but should be transferred to term for trial before a jury (Code, § 623), just as the clerk might so transfer it (Code, § 256). As said in cases above cited, it would be strange to dismiss an action already in the superior court because before the clerk, or the judge at chambers, and tell the plaintiff to come back into the same court before the same judge, the same clerk being present, at term, by service of another summons upon the same parties. The remedy is not to dismiss, but (the parties being already in court by service of summons) simply to transfer the cause to the proper docket. This does no one any detriment, saves time and costs, and avoids the unseemly countermarching incident to the old practice when a plaintiff was put out of court by one door if he wrongly brought an action for assumpsit, for instance, and was left to guess by which door he should come back into the same room--whether by labeling his action "trover," "trespass," ""detinue," or other process, the correctness of which guess he could only prove by a costly process of elimination. Even when an action is brought in the superior court, but in the wrong county, there being general jurisdiction, the action is now not dismissed, but is transferred to the court in the proper county.

The court erred in dismissing the action for want of jurisdiction. It was in the court that had jurisdiction. No amendment was necessary, but, if it were desirable, it was error to hold that the court had no power to allow it. Piercy v. Watson, 118 N.C. 976, 24 S.E. 659; Thomas v. Womack, 64 N.C. 657. Besides, the incidental averment that the plaintiff "was damaged five thousand dollars or more" did not make it an action for a money...