Kilby v. Dowdle, 6928SC38

Decision Date30 April 1969
Docket NumberNo. 6928SC38,6928SC38
Citation4 N.C.App. 450,166 S.E.2d 875
CourtNorth Carolina Court of Appeals
PartiesFrank KILBY v. Jesse Wilton DOWDLE and Carolina Truck & Body Company, Inc.

Gudger & Erwin, by Samuel J. Crow, Asheville, for plaintiff-appellee.

Uzzell & DuMont, by Harry DuMont, Asheville, for defendant-appellant.

BRITT, Justice.

An appeal lies immediately from refusal to dismiss a cause for want of jurisdiction. 1 Strong, N.C. Index 2d, Appeal and Error, § 6, p. 118.

Carolina contends that the superior court did not have jurisdiction to pass upon the plea in bar; that the Industrial Commission had exclusive jurisdiction to determine if plaintiff at the time of the injury came under the provisions of the Workmen's Compensation Act. We think this case is governed by the decision in Burgess v. Gibbs, 262 N.C. 462, 137 S.E.2d 806. In that case, the superior court had concluded, in a situation bearing some similarity to the one at hand, that the plaintiff was an employee subject to the Workmen's Compensation Act and had dismissed the action. Parker, J. (now C.J.), noted that '(w)hen the trial judge in the absence of the jury heard and decided all questions relating to the court's jurisdiction to entertain the instant action, he followed the sound rule that every court necessarily has inherent judicial power to inquire into, hear and determine the questions of its own jurisdiction, whether of law or fact, the decision of which is necessary to determine the questions of its jurisdiction. (Numerous citations.)' We hold that the superior court did have jurisdiction to pass upon the plea in bar.

Carolina's assignments of error to the court's findings of fact are overruled. Although the evidence was in conflict on several crucial points, among which were whether plaintiff was to receive compensation for the trip and whether plaintiff was to render services to Carolina on the trip, competent evidence sufficient to support the findings of fact was introduced. Consequently, the findings of fact are binding and conclusive upon us, notwithstanding there was evidence Contra. Burgess v. Gibbs, supra.

Carolina's assignments of error to the court's conclusions of law are overruled. The conclusions of law made by the court, based on the facts found, were correct and comply fully with the rationale set out in Humphrey v. Quality Cleaners and Laundry, 251 N.C. 47, 110 S.E.2d 467. Here, the trip by the plaintiff bore no...

To continue reading

Request your trial
10 cases
  • North Carolina Consumers Power, Inc. v. Duke Power Co.
    • United States
    • North Carolina Supreme Court
    • 1 Julio 1974
    ...an appeal lies before final judgment.' Merrimon, J., in Leak v. Covington, 95 N.C. 193.' Duke relies upon the cases of Kilby v. Dowdle, 4 N.C.App. 450, 166 S.E.2d 875, and Elliott v. Ballentine, 7 N.C.App. 682, 173 S.E.2d 552, to support its contention that the denial of its Motions to Dism......
  • Teachy v. Coble Dairies, Inc.
    • United States
    • North Carolina Supreme Court
    • 13 Julio 1982
    ...on this point is sound. The contrary holding in Eller v. Coca-Cola Co., 53 N.C.App. 500, 281 S.E.2d 81 (1981) and Kilby v. Dowdle, 4 N.C.App. 450, 166 S.E.2d 875 (1969) should be The application of the foregoing rule to the instant case is not so unassailable, however. Courts have differed ......
  • Eller v. Coca-Cola Co.
    • United States
    • North Carolina Court of Appeals
    • 18 Agosto 1981
    ...appeal is proper since an appeal lies immediately from the denial of a motion to dismiss for want of jurisdiction. Kilby v. Dowdle, 4 N.C.App. 450, 166 S.E.2d 875 (1969). We shall review, therefore, defendants' contention that State court jurisdiction has been preempted by federal law and t......
  • Shaver v. N. C. Monroe Const. Co.
    • United States
    • North Carolina Court of Appeals
    • 3 Noviembre 1981
    ...Co., 53 N.C.App. 500, 281 S.E.2d 81 (1981); Broaddus v. Broaddus, 45 N.C.App. 666, 263 S.E.2d 842 (1980), and Kilby v. Dowdle, 4 N.C.App. 450, 166 S.E.2d 875 (1969). With respect to the appealability issue, these four cases stand for the proposition that the appellate courts will entertain ......
  • 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