Waters v. McBee

• Decision Date: 10 October 1956
• Docket Number: No. 89,89
• Citation: 94 S.E.2d 640,244 N.C. 540
• Parties: Mrs. Pearl H. WATERS v Dr. Paul McBee.
• Court: North Carolina Supreme Court

Page 640

94 S.E.2d 640

244 N.C. 540

Mrs. Pearl H. WATERS v Dr. Paul McBee.

No. 89.

Supreme Court of North Carolina.

Oct. 10, 1956.

Proctor & Dameron, Marion, W.E. Anglin, Burnsville, and McBee & McBee, Spruce Pine, for defendant appellant.

1. C.Crawford and L.C. Stoker, Asheville, for plaintiff appellee.

RODMAN, Justice.

Before the limitation was imposed on the Legislature by sec. 29, Art. II of the Constitution, it could, by local act, establish in any community courts inferior to the Superior Court. Rhyne v. Lipscombe, 122 N.C. 650, 29 S.E. 57; State v. Baskerville, 141 N.C. 811, 53 S.E. 742; Farmers' Cotton Oil Co. v. Blue Ridge Grocery Co., 169 N.C 521, 86 S.E. 338; McCall v. Webb, 125 N.C. 243, 34 S.E. 430; Jones v. Standard Oil Co., 202 N.C. 328, 162 S.E. 741.

The limitation imposed on the Legislature by the amendment, sec. 29, Art. II, to establish local courts, tailored to fit the assumed needs of each locality, created a responsibility to provide a uniform system of sufficient breadth to meet all the varying conditions in the State.

The Legislature attempted to solve the problem in 1919. To accomplish the desired purpose, it enacted c. 277 of the laws of that year. That statute authorized local communities to establish local courts with differing territorial power bu substantially the same jurisdiction. The courts authorized were Municipal Recorder's Courts, County Recorder's Courts, and Municipal-County Courts. The jurisdiction conferred was principally criminal. With slight modifications, the authority given by c. 277, P.L. 1919, to create these courts now appears as Articles 24, 25 and 26 of Chapter 7 of the General Statutes.

In only one instance did the statute confer extensive civil jurisdiction. Secs. 47 and 48 of c. 277 (now G.S. §§ 7-246, 7-247) provide:

"Sec. 47. The board of county commissioners of any county in which there is a city or town with a population of not less than ten thousand nor more than twenty-five thousand inhabitants, in which city or town there has been established a recorder's court, under the provisions of this act, or in which there is a recorder's court established by law, may confer upon such recorder's court jurisdiction to try and determine civil actions, wherein the party plaintiff or defendant is a resident of such county, as hereinafter provided; or where the plaintiff or defendant is doing business in said county, such jurisdiction may be conferred upon such court by resolution by the board of county commissioners of the county, which resolution shall be entered upon the minutes of the board."

"Sec. 48. The jurisdiction in civil actions of such court shall be as follows: (a) Jurisdiction concurrent with that of the justices of the peace within the county; (b) jurisdiction concurrent with the jurisdiction of the Superior Court in all actions founded on contract, wherein the amount involved exclusive of interest and costs does not exceed one thousand dollars; (c) jurisdiction concurrent with the Superior Court in actions other than actions founded upon contract wherein the amount involved exclusive of interest and costs does not exceed the sum of five hundred dollars."

The population limitation for the creation of the court authorized by § 47 of the Act manifestly limited the number of courts which could be created under the statute. So far as civil jurisdiction was concerned, the statute of 1919 accomplished very little for the establishment of new courts.

Secs. 12 and 18 of this Act (now G.S. §§ 7-198, 7-202) authorizing the creation of Municipal Recorder's Courts and County Recorder's Courts permitted them to issue process to any county in the State. Jury trials in these courts conformed to jury trials before a justice of the peace, but jury trials in courts authorized by § 47 of the Act were with a jury of twelve. § 52, c. 277, P.L. 1919 (now G.S. § 7-252).

Sec. 56 of c. 277, P.L. 1919 (now G.S. § 7-248), provides:

"Sec. 56. The rules of practice in the said court [that is, a court established pursuant to § 47 of the Act] shall be the same as the rules of practice in the Superior Court, as near as may be, and processes and pleadings shall be issued and filed in the same manner as processes and pleadings in the Superior Court, as near as may be: Provided, that processes shall be returnable directly to this court in all cases: Provided, no civil process issued by any recorder's court in this State shall be issued to any county other than in which such court is located."

The Legislature of 1921 amended § 47 of the Act of 1919, which had been codified as C.S. § 1589, by adding at the end of the section: " 'and the board of county commissioners of any county may likewise confer civil jurisdiction on the county recorder's court to try and determine civil actions as hereinafter provided wherein one or more of the parties, plaintiff or defendant, is a resident of said county or is doing business therein." § 7, c. 110, P.L. 1921.

Sec. 48 of c. 277, P.L. 1919, which had been codified as C.S. § 1590, was also amended to name " municipal and county recorder's courts' " P.L. 1921, c. 110, § 8 as courts which could exercise the jurisdiction conferred by § 48 of the Act of 1919.

The 1921 statute thus conferred extensive civil jurisdiction on each of the courts established pursuant to the authority given by c. 277, P.L. 1919.

But the jurisdiction thus conferred extensive civil jurisdiction on each of the courts established pursuant to the authority given by c. 277, P.L. 1919.

But the jurisdiction thus conferred was limited as follows: (a) concurrent with that of a justice of the peace, (b) concurrent with the Superior Court in all actions founded on contract where the amount involved exclusive of interest and costs did not exceed one thousand dollars, (c) concurrent with the Superior Courts in all actions not founded upon contract when the amount did not exceed five hundred dollars, and (d) where one of the parties to the action was a resident of the county wherein the action was instituted.

Deeming the court system created by the 1919 Act, c. 277, as amended in 1921, c. 110 not sufficiently elastic to meet the needs of the State, the Legislature of 1923 authorized the creation of a new system of courts. The authority to establish such courts is contained in § 1, c. 216, P.L. 1923, which is as follows: "In each county of this State there may be established a court of civil and criminal jurisdiction, which shall be a court of record and which shall be maintained pursuant to this act, and which court shall be called the General County Court and shall have jurisdiction over the entire county in which said court may be established." This is now the first sentence of G.S. § 7-265.

Criminal jurisdiction was conferred on the General County Courts so authorized by § 13 in the following language: "The General County Court, herein provided for, shall have the following jurisdiction in criminal actions within the county". Then follow the first four subsections of G.S. § 7-278.

Civil jurisdiction is conferred by § 14, c. 216, P.L. 1923, in the following language: "The jurisdiction of the General County Court in civil actions shall be as follows". Then follows the same language found in the first five subsections of G.S. § 7-279.

The authority of General County Courts to issue civil process and the rules of procedure in civil actions is defined by § 7 of c. 216, P.L. 1923 (now G.S. § 7-286), as follows:

"The rules of procedure, issuing process and filing pleadings hall conform as near as may be to the practice in the Superior Courts. The process shall be returnable directly to the court, and no civil process, except subpoenas, shall issue out of the court to any county other than that in which the court is located."

This provision gave the General County Courts authority to require only those who could be found within the territorial confines of the court to answer in civil actions. Residence was not made a jurisdictional test as in 1921. NOn-residents of the county could voluntarily submit to its jurisdiction.

The Legislature of 1925 passed two acts dealing with the issuance of process by General County Courts established pursuant to c. 216, P.L. 1923.

Both acts were ratified March 10, 1925, the day of adjournment. They are c. 242 and c. 250 of the Laws of 1925. The portions of each of these acts as pertinent to this controversy are as follows:

"That chpater two hundred and sixteen section seven of Public Laws of one thousand nine hundred and twenty-three, be and is hereby amended by striking out all of said section and substituting in lieu thereof the following:

" 'The rules of procedure, issuing process and filing pleadings shall conform as nearly as may be to the practice in the Superior Courts. The process shall be returnable directly to the court, and may issue out of the court to any county in the State: Provided, that civil process in cases within the jurisdiction now exercised by justices of the peace shall not run outside of or beyond the county in which such court sits.' " § 2, c. 242, P.L. 1925.

"Section seven of chapter two hundred and sixteen of the Public Laws of one thousand nine hundred and twenty-three be amended by adding thereto the following: 'Provided, that in any civil action instituted in said general county court, where one or more bona fide defendants reside in said county and one or more bona fide defendants reside out of said county, then in such case, summons may be issued out of said general county court against the defendants residing outside of said county as well as those residing in said county, and the said general county court shall have jurisdiction to try the action as against all of said defendants.' " § 2, c. 250, P.L. 1925.

It is apparent that the legislation of 1925 was intended to enlarge the power of the General County Courts to require parties to submit to its process.

By the 1923 Act, c. 216 § 7,...