Ward v. Agrillo

• Decision Date: 05 October 1927
• Docket Number: 164.
• Citation: 139 S.E. 451,194 N.C. 321
• Parties: WARD et al. v. AGRILLO.
• Court: North Carolina Supreme Court

139 S.E. 451

194 N.C. 321

WARD et al. v. AGRILLO.

No. 164.

Supreme Court of North Carolina

October 5, 1927

Appeal from Superior Court, Craven County; Nunn, Judge.

Action by A. D. Ward and another against Dora Agrillo. Judgment for plaintiffs, and defendant appeals. Appeal dismissed.

Shaw & Jones, of Kinston, for appellant.

Guion & Guion, D. L. Ward, and Whitehurst & Barden, all of Newbern for appellees.

CONNOR J.

Plaintiffs in this action demand judgment that they recover of defendant for professional services rendered, and expenses incurred by them, as attorneys and counsellors at law, in defendant's behalf and at her request.

The summons, dated March 31, 1927, and returnable in the superior court of Craven county on April 15, 1927, was personally served on April 1, 1927. On the return day, plaintiffs filed their duly verified complaint. No answer has been filed thereto by defendant. She filed a motion before the clerk of the superior court for the removal of the action to the District Court of the United States for trial. This motion was denied by the clerk on May 5, 1927. Defendant's appeal from the order of the clerk, denying her motion for removal, was heard by the judge presiding at the May term 1927, of the superior court of Craven county. The order of the clerk was affirmed. There was no appeal from the judgment affirming the order of the clerk and denying defendant's motion for removal. The record does not show that defendant has taken further action to have the cause removed to the District Court of the United States for trial. It is still pending in the state court.

After defendant's motion for removal had been denied plaintiffs moved before the clerk of the superior court for judgment by default and inquiry. 3 C. S. 593. From the refusal of the clerk to enter judgment upon this motion, plaintiffs appealed to the resident judge of the superior court. Upon the hearing of this appeal by the said judge, on July 2, 1927, at Newbern, N. C., both plaintiffs and defendant appeared by their respective attorneys. After argument, judgment was rendered by said judge, remanding the action to the clerk, with directions "to enter judgment for the plaintiffs in the form tendered, or in some other form of equivalent effect." To this judgment, defendant excepted.

Thereafter, on July 26, 1927, the clerk of the superior court rendered judgment for plaintiffs and against defendant, by default and inquiry, directing therein that an issue be submitted to a jury to be impaneled at the next or at a subsequent term of the superior court of Craven county, for the assessment of damages, etc. To this judgment defendant excepted. She has appealed therefrom to the judge of the superior court. It does not appear that this appeal has been heard or disposed of. It is still pending.

This action is here upon the appeal of defendant from the judgment of the resident judge, remanding the action to the clerk, with directions. Only the validity of this judgment is therefore presented by this appeal. Defendant's contention that the judgment is void, for that the resident judge was without jurisdiction to hear and determine the appeal from the clerk, is well-founded.

In State v. Ray, 97 N.C. 510, 1 S.E. 876, it is held by this court that each judge of the superior court has general jurisdiction only in the judicial district to which he is assigned by statute, enacted pursuant to the provisions of section 11 of article 4 of the Constitution of North Carolina, except in case of the exchange of courts with another judge, or of special commission to hold a special term of court in a particular county. It is there said that "this seems to have been understood as the law ever since the present system of judicature was established." See Moore v. Moore, 131 N.C. 371, 42 S.E. 822, where...