Jones v. Brinson, No. 315

• Docket Nº: No. 315
• Citation: 238 N.C. 506, 78 S.E.2d 334
• Case Date: November 04, 1953
• Court: United States State Supreme Court of North Carolina

Page 334

78 S.E.2d 334 238 N.C. 506 JONES et al.
v.
BRINSON et ux. No. 315 Supreme Court of North Carolina. Nov. 4, 1953

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.

Page 337

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' [238 N.C. 509] 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,

Page 338

138 S.E. [238 N.C. 510] 1; 56 Am.Jur., Venue, Sec. 43. Also, a litigant's rights as to venue may be waived. This because venue...