Jones v. Brinson

Decision Date04 November 1953
Docket NumberNo. 315,315
Citation238 N.C. 506,78 S.E.2d 334
CourtNorth Carolina Supreme Court
PartiesJONES et al. v. BRINSON et ux.

Charles L. Abernethy, Jr., New Bern, for plaintiffs-appellants.

A. D. Ward, New Bern, Bernard Hollowell, Bayboro, and H. P. Whitehurst, New Bern, for defendants-appellees.

JOHNSON, Justice.

The plaintiffs' chief assignment of error is that the Superior Court of Pamlico County 'had no jurisdiction' to hear the exceptions to the referee's report. The plaintiffs take the position that by virtue of the order of removal the Pamlico court lost jurisdiction of the case and the Craven court acquired it; and that while the Craven court thereafter entered an order remanding the case to Pamlico, nevertheless, the judgment based on the hearing in Pamlico was a nullity because the order of remand was not filed in Pamlico until after the hearing and entry of judgment. Thus, in the final analysis the plaintiffs' challenge to the jurisdiction of the Superior Court of Pamlico County rests on the contention that the actual filing in the Pamlico court of the order of remand was a sine que non to its recapture of jurisdiction.

The plaintiffs' contention is untenable. It discloses a failure to give due consideration to (1) the basic distinctions between 'jurisdiction' and 'venue,' and (2) the procedural requirements of G.S. § 1-87 relating to transfer of jurisdiction on change of venue.

Jurisdiction is the power of a court to decide a case on its merits; it is the power of a court to inquire into the facts, to apply the law, and to enter and enforce judgment. Jurisdiction presupposes the existence of a duly constituted court with control over a subject matter which comes within the classification limits designated by the constitutional authority or law under which the court is established and functions. Williams v. Williams, 188 N.C. 728, 125 S.E. 482; State v. Hall, 142 N.C. 710, 55 S.E. 806; 14 Am.Jur., Courts, Sections 160 to 162. Jurisdiction also presupposes control by the court over the parties litigant, duly acquired either by general appearance or by such service of process as brings them before the court, actually or constructively, in a constitutional sense. Collins, v. North Carolina State Highway Commission, 237 N.C. 277, 74 S.E.2d 709; McIntosh, North Carolina Practice and Procedure, pp. 6 and 7.

Venue means the place wherein the cause is to be tried. As it relates to the Superior Court of North Carolina, venue refers to the county in which the action is to be tried. Graham v. Charlotte & S. C. R. Co., 64 N.C. 631; Shaffer v. Bank, 201 N.C. 415, 160 S.E. 481; Constitution of North Carolina, Art. IV, Sections 2 and 10. See also 56 Am.Jur., Venue, Sec. 2.

Jurisdiction over the subject matter of an action cannot be conferred by consent of the parties where it is not otherwise possessed by the court. Nor can jurisdiction in this sense be conferred by waiver or estoppel. In short, it may not be rested on agreements between the parties. 'The question is whether the court is itself competent under any circumstances to adjudicate a claim against the defendant, not whether a competent court has obtained jurisdiction of a party triable before it.' 14 Am.Jur., Courts, Sec. 184.

While it is true that no consent can give a court jurisdiction of the subject matter of an action which the court does not possess without such consent, it is equally true that a court may obtain jurisdiction over the person of a party litigant by his consent. This for the reason that it is a mere personal privilege of a defendant to require that he be served with process in a legal manner, and since it is a personal privilege--even though of a constitutional nature--he may consent to the jurisdiction of the court without exacting performance of the usual legal formalities as to service of process. Springer v. Shavender, 118 N. C. 33, 23 S.E. 976; 14 Am.Jur., Courts, Sec. 184.

Similarly, the venue of an action as fixed by statute or by former order of the court may be changed by consent of the parties, express or implied. Griffin v. Griffin, 237 N.C. 404, 75 S.E.2d 133; Heuser v. Heuser, 234 N.C. 293, 67 S.E.2d 57; Bisanar v. Suttlemyre, 193 N.C. 711 138 S.E. 1; 56 Am.Jur., Venue, Sec. 43. Also, a litigant's rights as to venue may be waived. This because venue is not jurisdictional. Shaffer v. Bank, supra; Rector v. Rector, 186 N.C. 618, 120 S.E. 195; 56 Am.Jur., Venue, Sec. 2.

With us, the basic procedure to be followed in transferring jurisdiction on change of venue is prescribed by G.S. § 1-87. This statute provides: 'When a cause is directed to be removed, the clerk shall transmit to the court to which it is removed a transcript of the record of the case, with the prosecution bond, bail bond, and the depositions, and all other written evidences filed therein; and all other proceedings shall be had in the county to which the place of trial is changed, unless otherwise provided by the consent of the parties in writing duly filed, or by order of court.'

In Fisher v. Cid Copper Mining Co., 105 N.C. 123, 10 S.E. 1055, this Court recognized and applied the principle that the party procuring the order of removal, or either or both parties in case of removal by consent, has until the term of court to which the cause is removed in which to pay the costs, procure the transcript of the record, and deposit it in the court to which the transfer is ordered. See also Cline v. Bryson City Mfg. Co., 116 N.C. 837, 21 S.E. 791; Eldred v. Becker, 60 Wis. 48, 18 N.W. 720; 67 C.J., p. 210.

Where, as here, the order of removal is by consent and no time is limited in the order of removal, it would seem, and we so hold, that the parties, or either of them, should have a reasonable time in which to deposit the transcript in the other court. Howard v. Barbee, 21 Ind. 221; 67 C.J., p. 210.

Here we are at grips with questions respecting the jurisdictional powers of the respective courts during the interval allowed for perfecting the order of removal. Jurisdiction cannot exist simulatneously in both courts, unless, as permitted by G.S. § 1-87, it is 'otherwise provided by the consent of the parties in writing duly filed, or by order of court.' And there is the further exception that, by virtue of G.S. § 8-62, subpoenas for witnesses and commissions to take depositions may issue from either court during the interval between the entry of the order of removal and the filing of the transcript in the court to which removal is ordered. Therefore, subject to these exceptions--none of which exists in the present case--when jurisdiction of the court to which the cause is removed attaches, the court of original venue eo instante loses jurisdiction. State v. Reid, 18 N.C. 377; 14 Am.Jur., Courts, Sec. 195. And we think a fair interpretation of G.S. § 1-87 is that until the transcript is filed in the court to which removal is ordered, it does not acquire jurisdiction over the cause. As to this, we do not mean to declare as a postulate that it is absolutely essential to the acquirement of jurisdiction by the court to which the venue is changed that a copy of the entire record be transmitted. It would seem to be sufficient to bring its power of jurisdiction into exercise if enough is transmitted to enable the court to determine what is in controversy and what is to be adjudicated by it. Once this is done, defects may be cured, if need be, by certiorari, upon suggestion of a diminution of the record. State v. Reid, supra; 56 Am.Jur., Venue, Sec. 76. Meanwhile, the jurisdiction of the court of original venue becomes dormant and that court is functus officio to deal with the substantive rights of the parties during the interval...

To continue reading

Request your trial
27 cases
  • Colo. Bankers Life Ins. Co. v. AT Denmark Investments, APS
    • United States
    • U.S. District Court — Eastern District of North Carolina
    • 18 Marzo 2021
    ...jurisdiction of the court without exacting performance of the usual legal formalities as to service of process." Jones v. Brinson, 238 N.C. 506, 509, 78 S.E.2d 334, 337 (1953). The legal formalities of service of process are a "personal privilege" which the defendant is free to relinquish. ......
  • In re K.J.L., COA08-284-2.
    • United States
    • North Carolina Court of Appeals
    • 16 Diciembre 2008
    ...it is the power of a court to inquire into the facts, to apply the law, and to enter and enforce judgment." Jones v. Brinson, 238 N.C. 506, 509, 78 S.E.2d 334, 337 (1953). "Personal jurisdiction refers to the Court's ability to assert judicial power over the parties and bind them by its adj......
  • In re Miller
    • United States
    • North Carolina Supreme Court
    • 22 Agosto 2003
    ...limits designated by the constitutional authority or law under which the court is established and functions." Jones v. Brinson, 238 N.C. 506, 509, 78 S.E.2d 334, 337 (1953); see also Perry v. Owens, 257 N.C. 98, 101-02, 125 S.E.2d 287, 290 (1962); State v. Hall, 142 N.C. 710, 713, 55 S.E. 8......
  • Colo. Bankers Life Ins. Co. v. AT Denmark Invs., ApS
    • United States
    • U.S. District Court — Eastern District of North Carolina
    • 18 Marzo 2021
    ...to the jurisdiction of the court without exacting performance of the usual legal formalities as to service of process." Jones v. Brinson, 238 N.C. 506, 509, 78 S.E.2d 334, 337 (1953). The legal formalities of service of process are a "personal privilege" which the defendant is tree to relin......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT