Va.-carolina Chem. Co v. Turner

• Decision Date: 12 November 1925
• Docket Number: (No. 361.)
• Citation: 130 S.E. 154
• Court: North Carolina Supreme Court
• Parties: VIRGINIA-CAROLINA CHEMICAL CO. v. TURNER et al.

130 S.E. 154

(190 N. C. 471)

VIRGINIA-CAROLINA CHEMICAL CO.

v.TURNER et al.

(No. 361.)

Supreme Court of North Carolina.

Nov. 12, 1925.

Appeal from Superior Court, Forsyth County; Finley, Judge.

Motion by F. H. Turner to set aside a judgment for the Virginia-Carolina Chemical Company against movant and others, trading as the Farmers' Supply Company. From a judgment of the superior court affirming judgment of county court, denying motion, and rendering judgment against movant and surety on his supersedeas bond, movant appeals. Affirmed.

The facts found by the Forsyth county court are as follows:

"That summons was issued out of this court on October 31, 1923, against the defendant F. H. Turner, returnable to a term of this court commencing the eleventh Monday after the first Monday in September, 1923, it being the 19th day of November, 1923. and that summons was served upon the defendant F. H. Turner, on November 5, 1923, by reading the said summons to the said defendant; that the plaintiff filed a duly verified complaint against this defendant and others on November 14, 1923, setting forth a cause of action and demanding judgment in the sum of $1,782.36. with interest thereon from May 1, 1923; that the defendant F. H. Turner has failed to answer or otherwise plead; that judgment was entered by this court on Monday, May 11, 1925, against the defendant F. H. Turner, for the sum of $1,782.-36, with interest thereon from May 1, 1923, that the said defendant did not file before time for answering expired and has never filed a motion to remove this cause for trial to the superior court of Ashe county; that the said defendant was at the time of the commencement of this action, and now is, a resident of Ashe county; that said summons was issued out of this court under the seal of this court to Ashe county, where the same was served by the sheriff of Ashe county by reading the summons to this defendant; that no defendant named in said summons was a resident of Forsyth county; that the plaintiff is a corporation, organized under the laws of the state of New Jersey, with a principal place of business in Winston-Salem, N. C."

W. R. Bauguess, of Jefferson, for appellant.

Swink, Clement & Hutchins, of Winston-Salem, for appellee.

VARSER, J. [1] The first attack on the validity of the default judgment against P. H Turner is that chapter 520, Public Local Laws 1915, creating the Forsyth county court, is unconstitutional, and therefore the court itself is a nullity.

This motion to declare itself out of existence was addressed to the Forsyth county court. This presents an anomalous situation. A court, as such, is asked to declare that it has no legal existence. This cannot be done. The court would first have to decide that it is a court in order to entertain the motion. Then, when the motion is considered, having already determined that it was a court, it would pass again on its own existence; and, if the motion is allowed, it would then undo itself and pass out of existence by virtue of its own ruling. Its ruling would be invalid if the act creating it is unconstitutional and the decision would not be, in any sense, judicial.

"Ex nihilo nihil fit" is still a maxim that knows no exception. This self-evident maxim was first applied in this state by Associate Justice Henderson in Beard v. Cameron, 7 N. C. 181, and followed in State v. Hall, 142 N. C. 710, 55 S. E. 806; State v. Wood, 175 N. C. 815, 95 S. E. 1050; State v. Simmer-son, 177 N. C. 546, 98 S. E. 784. The only case that seems to militate against this position is State v. Shuford, 128 N. C. 588, 38 S. E. 80S. This case has not been followed, and has only been cited twice: St. George v. Hardie, 147 N. C. 88, 60 S. E. 920, and State v. Wood, supra. In each of these citations it was distinguished. The decision is plainly correct as a substantive proposition, but, as to the power of the court to entertain the motion, it is not approved.

The jurisdiction of the superior court of Forsyth county is derivative in appeals from the county court; therefore the question of the constitutionality of chapter 520, Public Local Laws 1915, was not properly presented to the superior court of Forsyth, nor to this court.

[31 Courts never anticipate a question of constitutional law before the necessity of deciding it arises. They never formulate a rule broader than required by the precise facts presented. The admitted power of the courts to determine the constitutionality of acts of the Legislature will never exert itself unless clearly necessary. Person v. Dough-ton, 1S6 N. C. 723, 725, 120 8. E. 481; Liverpool Steamship Co. v. Commissioners of Emi gration, 113 U. S. 39, 5 S. Ct. 352, 28 L. Ed. 900; Com'rs v. State Treasurer, 174 N. C. 148, 93...