Williams v. Cooper
| Decision Date | 24 February 1943 |
| Docket Number | 20. |
| Citation | 24 S.E.2d 484,222 N.C. 589 |
| Parties | WILLIAMS v. COOPER et ux. |
| Court | North Carolina Supreme Court |
On October 16, 1942, plaintiff, a resident of Rockingham County, instituted this action in the Recorder's Court of Reidsville against the defendants residents of Lee County, to recover an alleged balance of $260.02 due on a note in the sum of $600 executed by defendants in Guilford County, dated October 16 1931, and payable October 16, 1932, to the North Carolina Industrial Bank of Greensboro. Plaintiff alleges that he acquired said note by purchase from the Commissioner of Banks acting as statutory receiver of the payee bank. Summons under seal was issued out of said Recorder's Court to the sheriff of Lee County and was served upon the defendants by him. Thereupon, defendants entered a special appearance and moved to dismiss the action for that the Recorder's Court of Reidsville Township was without jurisdiction of either the parties or the subject matter of the suit.
On December 1, 1942, the Judge of the Recorder's Court heard said motion, overruled same and ordered the defendants to file answer. The trial judge having denied defendants' right to appeal from his order dismissing the motion made on special appearance, on the grounds that such appeal was premature, the defendants applied by petition to the Superior Court for a writ of certiorari.
Thereafter, the parties entered into a written stipulation that the petition for certiorari should be submitted to Gwyn, J., Resident Judge and Judge holding the Courts of the 21st. Judicial District, to determine the questions of law arising on said petition and to render judgment thereon, with authority on the part of the court to find the facts, if the finding of facts should become necessary. Pursuant to said stipulation the court considered the petition and concluded "that said Recorder's Court has jurisdiction of the subject matter and the parties to this action." Judgment was entered sustaining the order of the recorder overruling and dismissing the special appearance made by the defendants. The cause was remanded to the Recorder's Court to the end that defendant may file answer and trial may be had on the issues thus raised. The defendants excepted and appealed.
K.R. Hoyle, for appellants.
Sharp & Sharp, for appellee.
The parties agreed in the stipulation filed that the questions of law presented for decision by the Superior Court were: (1) Did the defendants have the right of immediate appeal to the Superior Court of Rockingham County upon the overruling of their special appearance and motion to dismiss without having first answered and before trial had in the Recorder's Court; and (2) if so, does the Recorder's Court of Reidsville Township have jurisdiction of the parties and the subject matter of this action either under general legislation or Public-Local Laws of North Carolina? Ch. 324, Public-Local Laws, 1915; Ch. 24, P.L.1931.
The motion or demurrer challenges the right of the plaintiff to maintain his action in the Recorder's Court of Reidsville. Defendants had the right to appeal from the order overruling the same. Code 1939, § 509; C.S. §§ 514, 638; Jones v. Standard Oil Co., 202 N.C. 328, 162 S.E. 741. McIntosh P. & P., 470. An appeal having been denied, petition for writ of certiorari was the proper remedy. Pue v. Hood, Com'r of Banks, 222 N.C. 310, 22 S.E.2d 896.
On the second question defendants deny jurisdiction either of the person or of the subject matter of the action.
The local court had jurisdiction of the person of the defendants for two reasons: (1) there was a valid service of summons; and (2) the defendants made general appearance.
The local court was authorized by the statute creating it to issue a summons running out of the county, and the issuance of the summons to another county addressed to the sheriff of that county is authorized by statute. Code 1939,§ 478(a). Admittedly this summons was served on defendants.
Jurisdiction of the person depends on notice and the duty to give notice by service of a valid summons rests upon plaintiff. When jurisdiction of the person is challenged for that there was no legal service of a valid summons a motion to dismiss made on special appearance is ordinarily the proper method of presenting the question for decision. Four County Agricultural Credit Corp. v. Satterfield, 218 N.C. 298, 10 S.E.2d 914; Lindsay v. Short, 210 N.C. 287, 186 S.E. 239; Smith v. Haughton, 206 N.C. 587, 174 S.E. 506; Suskin v. Maryland Trust Co., 213 N.C. 388, 196 S.E. 407; Bank v. Derby, 215 N.C. 669, 2 S.E.2d 875; Denton v. Vassiliades, 212 N.C. 513, 193 S.E. 737. A general appearance waives any defect in the jurisdiction of the court for want of valid summons or proper service thereof. Four County Agricultural Credit Corp. v. Satterfield, supra; Dailey Motor Co. v. Reaves, 184 N.C. 260, 114 S.E. 175; Bank v. Derby, supra.
On the other hand, objection to the jurisdiction of the court over the subject matter of the action is presented by demurrer, C.S. § 511, and a demurrer is a plea to the cause of action set out in the complaint. Dailey Motor Co. v. Reaves, supra; Shaffer v. Bank, 201 N.C. 415, 160 S.E. 481; Four County Agricultural Credit Corp. v. Satterfield, supra.
A motion or demurrer which pertains to the merits of the cause or alleged deficiencies in the complaint constitutes a general appearance and subjects the movant to the jurisdiction of the court. Dailey Motor Co. v. Reaves, supra; Shaffer v. Bank, supra; Four County Agricultural Credit Corp. v. Satterfield, supra.
An objection that the court has no jurisdiction of the subject matter of the action is considered in law as taken to the merits and not merely to the jurisdiction of the court over the person of the defendant and an appearance for the purpose of entering such objection is, in fact, a general appearance which waives any defect in the jurisdiction arising either from want of service on defendants or from a defect therein. Dailey Motor Co. v. Reaves, supra; Four County Agricultural Credit Corp. v. Satterfield, supra; Gilbert v. Hall, 115 Ind. 549, 18 N.E. 28.
It follows that defendants are in court both by service of summons and by general appearance made when they filed their motion to dismiss for want of jurisdiction of the subject matter of the action.
This brings us to the primary question presented for decision: Does the Recorder's Court of Reidsville have jurisdiction of the cause of action set out in the complaint?
Defendants' challenge of this jurisdiction is bottomed upon language used in the Act first conferring on this Court limited jurisdiction in civil actions. Ch. 324, Public-Local Laws 1915. The jurisdiction conferred by this Act is "in civil actions arising in said county...
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