Greene v. Stadiem

• Decision Date: 02 October 1929
• Docket Number: 209.
• Citation: 149 S.E. 685,197 N.C. 472
• Parties: GREENE, Com'r of Court, v. STADIEM et ux.
• Court: North Carolina Supreme Court

149 S.E. 685

197 N.C. 472

GREENE, Com'r of Court, v. STADIEM et ux.

No. 209.

Supreme Court of North Carolina

October 2, 1929

Appeal from Superior Court, Lenoir County; Cowper, Special Judge.

Controversy without action between George B. Greene, Commissioner of Court, and H. Stadiem and wife. From the judgment defendants appeal. Reversed, and case dismissed.

Controversy without action, submitted as follows:

"The plaintiff and the defendants, having a question in difference which might be the subject of a civil action agree upon the following statement containing the facts upon which the controversy depends, and present a submission of the same to the court, as provided in Section 626 of the Consolidated Statutes of North Carolina, and do hereby stipulate and agree that G. V. Cowper, Judge of the Superior Court of North Carolina, residing in Kinston, may hear this controversy without action at Chambers in Kinston, and render judgment herein."

From the judgment rendered on the facts agreed, the defendants appeal.

F. E Wallace, of Kinston, for appellants.

Sutton & Greene, of Kinston, for appellee.

STACY C.J.

The court will take judicial notice of the fact that Hon. G. V Cowper is one of the special judges appointed by the Governor under authority of chapter 137, Public Laws 1929. Gross v. Wood, 117 Md. 362, 83 A. 337, Ann. Cas. 1914A, 30, and note; 15 R. C. L. 1106. It is not suggested that he was designated or commissioned by the Governor to hold a regular or special term of the superior court of Lenoir county during the week of May 18, 1929, when the judgment in the instant case was signed, but the contrary has been made to appear by certificate from the clerk of the superior court of said county. Indeed, the judgment on its face purports to have been rendered "at chambers."

It is provided by article 4, § 11, of the State Constitution that every judge of the superior court shall reside in the district for which he is elected, and shall preside in the courts of the different districts successively, but not in the same district oftener than once in four years, etc.; "and the general assembly may by general laws provide for the selection of special or emergency judges to hold the superior courts of any county, or district, when the judge assigned thereto, by reason of sickness, disability, or other cause, is unable to attend and hold said court, and when no other judge is available to hold the same. Such special or emergency judges shall have the power and authority of regular judges of the superior courts, in the courts which they are so appointed to hold."

Pursuant to this provision of the Constitution, the General Assembly of 1929, by general law, chapter 137, authorized the Governor to appoint six special judges of the superior courts for terms beginning July 1, 1929, and ending June 30, 1931, and to issue commissions accordingly.

Section 5 of said act provides: "That such special judges during the time noted in their commissions shall have all the jurisdiction which is now or may...