Scott v. Scott

• Decision Date: 14 June 1963
• Docket Number: No. 399,399
• Citation: 259 N.C. 642,131 S.E.2d 478
• Parties: Donald SCOTT v. Roslyn Kern SCOTT.
• Court: North Carolina Supreme Court

Page 478

131 S.E.2d 478

259 N.C. 642

Donald SCOTT v. Roslyn Kern SCOTT.

No. 399

Supreme Court of North Carolina.

June 14, 1963

Womble, Carlyle, Sandridge & Rice, by Charles F. Vance, Jr., Winston-Salem, and Erdheim & Armstrong, New York City, for defendant-appellant.

McLennan & Surratt, Winston-Salem, and Weidlich & Rogers, New York City, for plaintiff-appellee.

SHARP, Justice.

Defendant's first assignment of error raised the question, does a resident judge have jurisdiction to pass upon a motion of nonsuit in chambers?

Since the enactment of Chapter 142, Public Laws of 1945, (now the first proviso in G.S. § 7-65) the answer has been YES. Prior thereto, it was NO. McIntosh, North Carolina Practice and Procedure (1st ed.) Section 630; Bynum v. Powe, 97 N.C. 374, 2 S.E. 170; McFetters v. McFetters, 219 N.C. 731, 14 S.E.2d 833.

Chapter 92, Public Laws of 1921, Extra Session (now G.S. § 1-209) gave the clerks of the Superior Court authority to enter judgments of nonsuit and certain other judgments. Thereafter, the authority of the clerk to enter judgments of nonsuit was concurrent with that of the judge at term. Hill v. Huffines Hotel Co., 188 N.C. 586, 125 S.E. 266; Caldwell v. Caldwell, 189 N.C. 805, 128 S.E. 329; Ward v. Agrillo, 194 N.C. 321, 139 S.E. 451. However, since February 14, 1945 a resident judge's jurisdiction to enter a voluntary nonsuit is not confined to term. By Chapter 78, Public Laws of 1951, the legislature amended G.S. § 7-65 to give similar powers to any Special Superior Court Judge residing in the district.

G.S. § 7-65 now provides, in part, as follows:

'Jurisdiction in vacation or at term. --In all cases where the superior court in vacation has jurisdiction, and all of the parties unite in the proceedings, they may apply for relief to the superior court in vacation, or in term time, at their election. The resident judge of the judicial district and any special superior court judge residing in the district and the judge regularly presiding over the courts of the district, shall have concurrent jurisdiction in all matters and proceedings where the superior court has jurisdiction out of term: Provided, that in all matters and proceedings not requiring the intervention of a jury or in which trial by jury has been waived, the resident judge of the judicial district and any special superior court judge residing in the district shall have concurrent jurisdiction with the judge holding the courts of the district and the resident judge and any special superior court judge residing in the district in the exercise of such concurrent jurisdiction may hear and pass upon such matters and proceedings in vacation, out of term or in term time: * * *.'

As pointed out in 23 N.C.L.R. 329, 330, the 1945 Legislature added the proviso in the above excerpt in consequence of the suggestion of Barnhill, J., later C. J., in his dissent in State Distributing Corporation v. Travelers Indemnity Co., 224 N.C. 370, 30 S.E.2d 377 (1944). At that time, in the opinion of Justice Barnhill, a resident judge had no jurisdiction at chambers to hear a cause upon an agreed statement of facts. G.S. § 7-65 then consisted only of the two sentences (minus the reference to special judges) preceding the proviso. Said Justice Barnhill:

'It confers concurrent jurisdiction on the resident judge only in those matters in which the Superior Court has jurisdiction 'out of term.' Actions pending on the civil issue docket are not included. Hence, the resident judge has no jurisdiction, and the judgment is without force in law. * *

'No doubt legislation giving the resident judge concurrent jurisdiction in all matters not requiring intervention of a jury or in which trial by jury has been waived would promote the prompt administration of justice and would be welcomed by the profession. So far, however, the General Assembly has failed to take that course.'

Since the 1945 and 1951 amendments to G.S. § 7-65, this Court has held that a regular judge has jurisdiction to hear and determine in chambers an action involving title to a bank account in which the answer raised no issues of fact, Westcott v. First & Citizens National Bank, 227 N.C. 39, 40 S.E.2d 461; that a special judge in the county of his residence has jurisdiction to hear and determine a demurrer in chambers, Parker v. Underwood, 239 N.C. 308, 79 S.E. 2d 765, and to hear and determine a controversy without action, Spaugh v. Charlotte, 239 N.C. 149, 79 S.E.2d 748.

In all matters not requiring a jury, or in which a jury trial has been waived, the resident judge and any special judge residing in the district now not only have concurrent jurisdiction with the judge holding the courts of the district, but they may pass upon such matters in vacation, out of term or in term time.

G.S. § 7-65 conferred upon Resident Judge Johnston jurisdiction to hear the plaintiff's motion for a voluntary nonsuit. He allowed the motion as a matter of right but refused to dismiss the action, presumably so that defendant might pursue her motion to amend her answer in order to assert an action against the plaintiff for alimony without divorce. Two questions now arise: (1) Was plaintiff entitled to take a voluntary nonsuit in his divorce action as a matter of right after notice that defendant intended to file a cross action for alimony without divorce but before it was actually filed; and (2) if so, the nonsuit having been entered, may defendant now amend her answer to assert such cross action?

The rule with reference to the right of a plaintiff to take a nonsuit is stated in McIntosh, North Carolina Practice and Procedure (2d ed.) Section 1645:

'While the plaintiff may generally elect to enter a nonsuit, 'to pay the costs and walk out of court,' in any case in which only his cause of action is to be determined, * * * he is not allowed to do so when the defendant has set up some ground for affirmative relief or some right or advantage of the defendant has supervened, which he has the right to have settled and concluded in the action. If the defendant sets up a counterclaim arising out of the same transaction alleged in the plaintiff's complaint, the plaintiff cannot take a nonsuit without the consent of the defendant; but if it is an independent counterclaim, the plaintiff may elect to be nonsuited and allow the defendant to proceed with his claim.'

McKesson v. Mendenhall, 64 N.C. 502; Caldwell v. Caldwell, supra; Nantahala Power & Light Co. v. Whiting Manufacturing Co., 209 N.C. 560, 184 S.E. 48; Sink v. Hire, 210 N.C. 402, 186 S.E. 494.

The defendant concedes this to be the general rule, but she contends that in an action for divorce a plaintiff's motion for voluntary nonsuit is addressed to the sound discretion of the court.

This is the...