Ridge Community Investors, Inc. v. Berry

• Decision Date: 15 December 1977
• Docket Number: No. 41,41
• Citation: 293 N.C. 688,239 S.E.2d 566
• Court: North Carolina Supreme Court
• Parties: RIDGE COMMUNITY INVESTORS, INC., F. L. Wrenn, Trustee, W. Clyde Burke and wife, Norma B. Burke, Harold H. Griswold and wife, Dorothy B. Griswold, and Mill Ridge Property Owners Association, Inc. v. Billy Eugene BERRY and Ward Carroll, Sheriff of Watauga County, North Carolina.

Page 566

239 S.E.2d 566

293 N.C. 688

RIDGE COMMUNITY INVESTORS, INC., F. L. Wrenn, Trustee, W.

Clyde Burke and wife, Norma B. Burke, Harold H.

Griswold and wife, Dorothy B. Griswold,

and Mill Ridge Property Owners

Association, Inc. v. Billy Eugene BERRY and Ward Carroll, Sheriff of Watauga

County, North Carolina.

No. 41.

Supreme Court of North Carolina.

Dec. 15, 1977.

Dark & Edwards, by L. T. Dark, Jr., Siler City, and Henderson, Henderson & Shuford, by David H. Henderson and William A. Shuford, Charlotte, for plaintiff-appellants.

Harkey, Faggart, Coira & Fletcher, by Francis M. Fletcher, Jr., and Henry A. Harkey, Charlotte, for defendant-appellee, Billy Eugene Berry.

BRANCH, Justice.

This appeal presents the question of whether the trial judge erred by denying plaintiffs' application and motion for a preliminary injunction prohibiting defendants from enforcing the claim of lien filed in Watauga County. It is plaintiffs' position that he did.

Plaintiffs first contend that the Mecklenburg Superior Court is without jurisdiction to enforce a claim of lien filed in Watauga County. In support of this contention, they point to the following language in G.S. 44A-12:

(a) Place of Filing. All claims of lien against any real property must be filed in the office of the clerk of superior court in each county wherein the real property subject to the claim of lien is located. The clerk of superior court shall note the claim of lien on the judgment docket and index the same under the name of the record owner of the real property at the time the claim of lien is filed. An additional copy of the claim of lien may also be filed with any receiver, referee in bankruptcy or assignee for benefit of creditors who obtains legal authority over the real property.

G.S. 44A-13(a) further provides:

Where and When Action Instituted. An action to enforce the lien created by this Article may be instituted in any county in which the lien is filed. No such action may be commenced later than 180 days after the last furnishing of labor or materials at the site of the improvement by the person claiming the lien. If the title to the real property against which the lien is asserted is by law vested in a receiver or trustee in bankruptcy, the lien shall be enforced in accordance with the orders of the court having jurisdiction over said real property.

Plaintiffs argue that since a notice and claim of lien must be filed in every county in which the land to be encumbered lies and since an action to enforce the claim may be instituted "in any county in which the lien is filed," the necessary implication is that such actions may be brought only in the county in which the land lies.

This Court considered a similar question in Sugg v. Pollard, 184 N.C. 494, 115 S.E. 153, 155. There an action to foreclose a labor and materialman's lien was instituted in Lee County to enforce a claim of lien filed in Pitt County, the county in which the land was situated. Defendant claimed that plaintiffs had thereby lost their lien and were only entitled to a money judgment. Treating the question as one of venue, this Court stated:

The lien sued upon in this action was duly filed in the county of Pitt, where the land lay. It is not provided in any of these sections where the action to foreclose such lien should be brought, but if it had been brought in any of those cases where the venue is specifically prescribed, still the error in the venue would not have been fatal, and a judgment obtained in any county where the action was brought would not have been invalid for error in the venue, "unless the defendant, before the time of answering expired, demanded in writing that the trial be conducted in the proper county, and the place of trial is thereupon changed by consent of parties, or by order of the court."

See also, Penland v. Church, 226 N.C. 171, 37 S.E.2d 177.

At the time Sugg and Penland were decided, the statutes concerning foreclosure of labor and materialmen's liens contained no language relating to where an action to enforce such lien should be instituted. Amendments to Chapter 44A enacted by the 1969 Legislature by Session Laws 1969 Chapter 1112, effective 1 January 1970, resulted in the language which appears in the above-quoted statutes. We are, therefore, confronted with the question of whether the language contained in G.S. 44A-13(a) stating that the action to enforce a lien "may be instituted in any county in which the lien is filed" is a jurisdictional requirement.

G.S. 7A-240 confers jurisdiction in all civil matters upon the General Court of Justice, and which court within the General Court of Justice is to hear a civil matter is controlled by the venue provisions of Article 7, Chapter 1 of the General Statutes. We are of the opinion that the ambiguous language contained in G.S. 44A-13(a) does not indicate a legislative intent to depart from the established law governing the enforcement of labor and material liens.

This conclusion is buttressed by the recent enactment of an amendment to Chapter 44A. G.S. 44A-13(c), effective 1 July 1977, provides:

Notice of action. Unless the action enforcing the lien created by this Article is instituted in the county in which the lien is filed, in order for the sale under the provisions of G.S. 44A-14(a) to pass all title and interest of the owner to the purchaser good against all claims or interests recorded, filed or arising after the first furnishing of labor or materials at the site of the improvement by the person claiming the lien, a notice of lis pendens shall be filed in each county in which the real property subject to the lien is located within 180 days after the last furnishing of labor or materials at the site of the improvement by the person claiming the lien. It shall not be necessary to file a notice of lis pendens in the county in which the action enforcing the lien is commenced in order for the judgment entered therein and the sale declared thereby to carry with it the priorities set forth in G.S. 44A-14(a). If neither an action nor a notice of lis pendens is filed in each county in which the real property subject to the lien is located within 180 days after the last furnishing of labor or materials at the site of the improvement by the person claiming the lien, as to real property claimed to be subject to the lien in such counties where the action was neither commenced nor a notice of lis pendens filed, the judgment entered in the action enforcing the lien shall not direct a sale of the real property subject to the lien enforced thereby nor be entitled to any priority under the provisions of G.S. 44A-14(a), but shall be entitled only to those priorities accorded by law to money judgments.

In interpreting statutes, the primary duty of this Court is to ascertain and effectuate the intent of the Legislature. Newlin v. Gill, 293 N.C. 348, 237 S.E.2d 819; Highway Commission v. Hemphill, 269 N.C. 535, 153 S.E.2d 22; Lockwood v. McCaskill, 261 N.C. 754, 136 S.E.2d 67. In ascertaining this intent, it is always presumed that the Legislature acted with full knowledge of prior and existing law. State v. Benton, 276 N.C. 641, 174 S.E.2d 793. Further, light may be shed upon the intent of the General Assembly by reference to subsequent amendments which, although normally presumed to change existing law, may be interpreted as clarifying it. See, Childers v. Parker's, Inc., 274 N.C. 256, 162 S.E.2d 481.

The enactment of G.S. 44A-13(c) is a strong indication that it was not the intent of the Legislature to enact a jurisdictional requisite when it used language in G.S. 44A-13(a) to the effect that such action "may be instituted in any county in which the lien is filed." The effect of this amendment is to give protection to purchasers and examiners of titles no matter where the action to enforce the lien is instituted. Had the Legislature intended to create a jurisdictional requirement as to the enforcement of liens, it could easily have done so by the use of explicit language. In our opinion, it is the better practice to file the action to enforce a lien in the county in which the claim of lien is filed. Even so, the General Assembly has the power to regulate proceedings in all courts below the Supreme Court, Highway Commission v. Hemphill, supra, and the procedure for enforcing labor and material liens is for that body.

The Court of Appeals correctly held that the Superior Court of Mecklenburg County had jurisdiction to enforce the claim of lien filed in Watauga County.

Plaintiffs next contend that the Assistant Clerk was without jurisdiction to enter that portion of the default judgment which purports to enforce the claim of lien and, therefore, that part of the judgment is void.

In Pruden v. Keemer, 262 N.C. 212, 136 S.E.2d 604, 607, Justice Bobbitt (later Chief Justice) stated:

The basic question is whether the clerk had jurisdiction to enter the purported default judgment of August 1, 1961. If not, said purported judgment is absolutely void and must be treated as a nullity. Deans v. Deans, 241 N.C. 1, 9-10, 84 S.E.2d 321, and cases cited.

The clerk of the superior court has no common law or equitable jurisdiction. McCauley v. McCauley, 122 N.C. 288, 30 S.E. 344. The clerk is a court "of very limited jurisdiction having only such jurisdiction as is given by statute." Moore v. Moore, 224 N.C. 552, 555, 31 S.E.2d 690, and cases cited; In re Dunn, 239 N.C. 378, 383, 79 S.E.2d 921; Deans v. Deans, supra. As stated by Seawell, J., in Johnston County v. Ellis, 226 N.C. 268, 279, 38 S.E.2d 31: "The jurisdiction of the clerk of the Superior Court is statutory and limited, and can be exercised only with strict observance of the statute."

Considering a former statute which provided that the clerk could enter judgment only on Mondays, this Court held that a sale based upon a judgment rendered by the clerk on a day other than Monday was void. Ange v. Owens, 224 N.C. 514, 31 S.E.2d 521. Likewise,...