Johnson v. Johnson

172 S.E.2d 264 (1970)

7 N.C. App. 310

Patsy Lou Payne JOHNSON v. Julian Neal JOHNSON.

No. 7021DC30.

Court of Appeals of North Carolina.

February 25, 1970.

*265 Wood & Phillips, by George F. Phillips, Winston-Salem, for plaintiff appellee.

Robert M. Bryant, Winston-Salem, for defendant appellant.

VAUGHN, Judge.

The defendant admitted in his answer and affirmatively alleged in his *266 counterclaim that the children were born of his marriage to the plaintiff. Where a material fact is alleged in the complaint and admitted in the answer, it will, for the purpose of the trial, be taken as true and beyond the range of questioning. Hartley v. Smith, 239 N.C. 170, 79 S.E.2d 767; Royster v. Hancock, 235 N.C. 110, 69 S.E.2d 29. It has the same effect for the plaintiff as if found by the jury. 2 McIntosh, N.C. Practice 2d, § 1235. Evidence to controvert the facts so admitted is properly excluded. Fleming v. Norfolk Southern R.R., 160 N.C. 196, 76 S.E. 212. There was no issue of paternity before the court, and defendant's motion for a blood test was properly denied by Judge Billings. Included in Judge Billings' Findings of Fact in her order of 6 December 1968 is the following:

"That the parties hereto are husband and wife having been lawfully married to each other in Stokes County, North Carolina on the 3rd day of April, 1959; that there have been born to said parties two children, namely: Dana Renee Johnson, age six, who was born January 21, 1962, and Joseph Charles Johnson, age three, who was born December 18, 1964; * * *"

The defendant did not appeal from this order. It became, therefore, the law of the case, and other district judges were without authority to enter orders to the contrary. It is well established that no appeal lies from one superior court judge to another and that ordinarily one superior court judge may not modify, overrule or change the judgment of another superior court judge previously made in the same action. 2 Strong, N.C. Index 2d, Courts, § 9. Identical reasons proscribe appeals from one district judge to another. Appeals in civil cases must be from the district court to the Appellate Division of the General Court of Justice. If justice is to be administered in an orderly fashion in the district court division, these fundamentals must be observed.

We note with some concern that within the span of less than eight months this case has been before four of the five district judges in the Twenty-First District which includes only one county. In addition to observing the restrictions on the authority of one district judge to reverse the orders of another, whenever reasonably possible, judicial discretion should be exercised to avoid having several judges hear separate fragments of the same lawsuit. This is particularly important in domestic cases involving the welfare of infants. "Justice to all parties is best served when one judge is able to see the controversy whole." In Re Custody of King, 3 N.C. App. 466, 165 S.E.2d 60. Presumably legislative anticipation of the procedural quagmires and "judge shopping" that could result from multi-judge districts (as are all our district court districts) was a factor prompting the enactment of G.S. § 7A-146. This section vests administrative supervision and authority over the operation of the district courts in the chief judge of the district. Subsection (2) of this section gives him the specific power and duty of "arranging or supervising the calendaring of matters for trial or hearing." Subsection (7) provides that he shall have the power and duty of "arranging sessions, to the extent practicable for the trial of specialized cases, including * * * domestic relations * * * and assigning district judges to preside * * * so as to permit maximum practicable specialization by individual judges; * * *."

We do not reach, nor do we imply, an affirmative answer to the question of whether this defendant's motion for a blood grouping test could have been allowed even if defendant had, by answer, denied paternity. In the light of the facts of this case, in which the defendant was married to plaintiff in 1959 and lived with her until November 1968, seven years after the birth of their daughter and four years following the birth of their son, common sense, public policy and overriding consideration *267 for the welfare of innocent children would seem to dictate the contrary, despite the broad language of G.S. § 8-50.1.

Although, as set out herein, some of the procedures followed to obtain them are disapproved, the results reached in the order appealed from are

Affirmed.

MALLARD, C. J., and MORRIS, J., concur.