Spaugh v. City of Charlotte

• Decision Date: 15 January 1954
• Docket Number: No. 535,535
• Citation: 79 S.E.2d 748,239 N.C. 149
• Parties: SPAUGH et al. v. CITY OF CHARLOTTE.
• Court: North Carolina Supreme Court

Page 748

79 S.E.2d 748

239 N.C. 149

SPAUGH et al. v. CITY OF CHARLOTTE.

No. 535

Supreme Court of North Carolina.

Jan. 15, 1954

Brock Barkley, Charlotte, for plaintiffs appellees.

John D. Shaw, Charlotte, for defendant appellant.

WINBORNE, Justice.

While the parties to this controversy without action have not formally presented it, this Court is confronted with a question of jurisdiction suggested on the oral argument on this appeal, which must be determined before proceeding to consideration of the assignments of error.

The question is whether or not a special judge of the Superior Court has jurisdiction to hear and determine in Chambers a controversy without action in the county of his residence, when he has not been assigned by the Chief Justice to hold a term of court in such county? If a special judge of Superior Court does have such jurisdiction, this case is properly before the Supreme Court. But if he does not have such jurisdiction, the case is not before the Court. For the jurisdiction of the Supreme Court is derivative. Shepard v. Leonard, 223 N.C. 110, 25 S.E.2d 445.

The jurisdiction of a special judge of the Superior Court over the subject matter of an action, or of a controversy without action, depends upon the authority granted to him by the Constitution and laws of the sovereignty, and is fundamental. McIntosh's N.C. P&P 7. Stafford v. Gallops, 123 N.C. 19, 31 S.E. 265. And objection to such jurisdiction may be made at any time during the progress of the action, or controversy without action. This principle is enunciated and applied in a long line of decisions in this State. See Henderson County v. Smyth, 206 N.C. 421, 5 S.E.2d 136, where prior cases are listed, including Burroughs v. McNeill, 22 N.C. 297, and Branch v. Houston, 44 N.C. 85. See also Lewis v. Harris, 238 N.C. 642, 78 S.E.2d 715.

In Burroughs v. McNeill, supra, it is stated by Gaston, J., that: 'The instant that the court perceives that it is exercising, or is about to exercise, a forbidden or ungranted power, it ought to stay its action, and, if it does not, such action is, in law, a nullity.'

And to like effect is Branch v. Houston, supra, where Pearson, J., wrote: 'If there be a defect, e. g., a total want of jurisdiction apparent upon the face of the proceedings, the court will of its own motion, 'stay, quash, or dismiss' the suit. This is necessary to prevent the court from being forced into an act of usurpation, and compelled to give a void judgment * * *. So, ex necessitate, the court may, on plea, suggestion, motion, or ex mero motu, where the defect of jurisdiction is apparent, stop the proceedings.'

Moreover, in Greene v. Stadiem, 197 N.C. 472, 149 S.E. 685, opinion by Stacy, C. J., filed 2 October, 1929, interpreting Art. IV, Sec. 11 of the N. C. Constitution, as it was then written, and pertinent statute as it then existed, P.L. 1929, Chap. 137, this Court held that a special judge to whom the controversy without action was submitted, by agreement of the parties, had not been commissioned by the Governor to hold a court in Lenoir County at the time of the signing the judgment, was without authority to determine the matter, and, hence, the proceeding was a nullity, being coram non judice, and the judgment void.

And in Shepard v. Leonard, supra, in opinion by Barnhill, J., filed 28 April, 1943, likewise interpreting Art. IV, Sec. 11 of the N. C. Constitution, and pertinent statute, Chap. 41 of P.L. 1941, then in effect, it was held that Art. IV of Sec. 11 of the Constitution did not confer, or authorize the Legislature to confer any 'in Chambers' or vacation jurisdiction upon a special judge assigned to hold a designated term of court, and the jurisdiction of a special judge was then limited to matters arising in the courts which he was duly appointed to hold.

But since these decisions were rendered both Art. IV, Sec. 11, and the statute in respect to special judges have been altered. Therefore, it seems appropriate that the Court here and now determine what jurisdiction is granted to a special judge in matters wholly in Chambers, and in vacation, that is, when he is not assigned to hold a particular term of court.

Art. IV, Sec. 11 of the Constitution of North Carolina, as amended, pursuant to proposal submitted under Chap. 775 of 1949 Session Laws of North Carolina, and adopted at the general election on 7 November, 1950, declares in pertment part, that 'The General Assembly may provide by general laws for the selection or appointment of Special or Emergency Superior Court Judges not assigned to any judicial district, who may be designated from time to time by the Chief Justice to hold court in any district or districts within the State; and the General Assembly shall define their jurisdiction * * *.'

And in the Act, Chap. 775 of 1949 Session Laws, Sec. 5, it is provided that 'all laws and clauses of laws in conflict with the provisions of this Act are hereby repealed.'

Thereafter the General Assembly, at the 1951 session, implementing the authority conferred upon it by Art. IV, Sec. 11 of the Constitution, as so amended, passed two acts, Chap. 78 of 1951 Session Laws of North Carolina, relating to the jurisdiction of special judges of the Superior Court, ratified 20 February, 1951, and Chap. 88 of 1951 Session Laws of North Carolina, relating to the jurisdiction of emergency judges of the Superior Court, ratified 22 February, 1951. In the first Act, Chap. 78, the statute, G.S. § 7-58, was rewritten and the statute, G.S. § 7-65, was amended.

Sec. 1 of the Act reads as follows: 'Special Superior Court Judges are hereby vested with the same power and authority in all matters whatsoever, in the courts in which they are assigned to hold, that regular judges holding the same courts would have. A special judge duly assigned to hold the courts of a county or judicial district shall have the same powers in the district in open court and in chambers as the resident judge or any judge regularly assigned to hold the courts of the district would have, which jurisdiction in chambers shall extend until the term is adjourned or the term expires by operation of law, whichever is later.'

Sec. 2 reads: (a) G.S. § 7-65 is hereby amended by inserting in line seven immediately following the word 'and' the words 'any special Superior Court Judge residing in the district and'.

And Sec. 2 reads (b) G.S. § 7-65 is hereby further amended by inserting in line 14 after the word 'district' and in line 16 after the word 'judge' the words 'and any Special Superior Court Judge residing in the district.'

Thus G.S. § 7-65 as so amended was made to read in pertinent part (Italics ours) as follows: '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 * * *.'

And Sec. 3 of Chap. 78 of 1951 Session Laws, supra, declares that 'All laws and clauses of laws in conflict with this Act are hereby repealed', and Sec. 4 makes the Act effective on ratification, and the Act was ratified 20 February, 1951.

Manifestly, the amendments to G.S. § 7-65 vested a special judge of the Superior Court, resident of a particular district, with concurrent jurisdiction with the resident judge and the judge regularly presiding over the courts of the district in all matters and proceedings where the Superior Court has jurisdiction out of term, and with authority in the exercise of such concurrent jurisdiction, to hear and pass upon all such matters and proceedings in vacation, out of term or in term time.

But the General Assembly when it came later to make provision for the appointment of special judges, enacted Chap. 1119 of 1951 Session Laws, effective from ratification, and ratified 14 April, 1951, in substance the same as previous acts providing biennially for appointment of special judges of the Superior Court, beginning in the year 1941.

Sec. 5 of this Act as in previous biennial acts reads as follows: 'To the end that such special judges shall have the fullest power and authority sanctioned by Article IV, Section 11, of the Constitution of North Carolina, such judges are hereby vested, in the courts which they are duly appointed to hold, with the same power and authority in all matters whatsoever that regular judges holding the same courts would have. A special judge duly assigned to hold the court of a particular county shall have during said term of court, in open court and in chambers, the same power and authority of a regular judge in all matters whatsoever arising in that judicial district that could properly be heard or determined by a regular judge holding the same term of court.'

And Sec. 8 declares that 'All laws and clauses of laws which may be in conflict with this Act, to the extent of such conflict, are hereby repealed: Provided, that nothing herein shall in...