State v. Black

59 S.E.2d 621 (1950)

232 N.C. 154

STATE et al. v. BLACK.

No. 649.

Supreme Court of North Carolina.

May 24, 1950.

*622 Attorney General Harry McMullan, Assistant Attorney General T. W. Bruton, John R. Jordan, Jr., Raleigh, and Walter F. Brinkley, Lexington, Members of Staff, for the State.

Stoner & Wilson, and Hubert E. Olive, Lexington, for defendant appellant.

*623 WINBORNE, Justice.

The only assignment of error presented on this appeal is that the court erred in signing the judgment set out in the record. Such assignment of error raises only the questions as to (1) whether the facts found by the judge of the Greensboro Municipal-County Court, and reiterated by the judge of Superior Court on appeal, support the judgment, and (2) whether error in matters of law appear upon the face of the record. Culbreth v. Britt, 231 N.C. 76, 56 S.E.2d 15, and cases there cited.

In this connection, the appellant here challenges, and we think properly so, the validity of the judgment holding him for contempt, on the ground, among others, that the subp&oeligna;, not being under the seal of the Greensboro Municipal-County Court, was not a process lawfully issued by that court for service in New Hanover County,outside of Guilford County in which the city of Greensboro is situated.

Moreover, there being no specific exception to any finding of fact made by the trial court, the facts so found are binding on appeal. Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351.

Nevertheless, the subpœna, which is characterized in the judgment below as "process lawfully issued" is made a part of the record, and the question as to its validity is one of law appearing upon the face of the record.

In this State any person guilty of "willful disobedience of any process or order lawfully issued by any court", may be punished for contempt. G.S. § 5-1(4). Nobles v. Roberson, 212 N.C. 334, 193 S.E. 420, Elder v. Barnes, 219 N.C. 411, 14 S.E.2d 249; Safie Mfg. Co. v. Arnold, 228 N.C. 375, 45 S.E.2d 577; Patterson v. Patterson, 230 N.C. 481, 53 S.E.2d 658.

But a process or order not "lawfully issued" may not be the basis on which to found a proceeding for contempt. In re Longley, 205 N.C. 488, 171 S.E. 788; Patterson v. Patterson, supra.

Here, therefore, the question is whether the subpœna under consideration was a process lawfully issued by the court.

In this connection, it is appropriate to advert to provisions of the statutes pertaining to the jurisdiction and powers of the Greensboro Municipal-County Court. This court, now designated the Greensboro Municipal-County Court, P.L.1939, Chapter 300, is the creature of the General Assembly of North Carolina, Public Laws 1909, Chapter 651. See Miles Co. v. Powell, 205 N.C. 30, 169 S.E. 828, and Starr Electric Co. v. Lipe Motor Lines, 229 N.C. 86, 47 S.E.2d 848. It has only such jurisdiction and powers as are given to it by the General Assembly. It was originally given jurisdiction of misdemeanors committed within the corporate limits of the city of Greensboro. And in Section 14 of this act, P.L.1909, Chapter 651, the General Assembly declared that said court shall have a seal "which * * * shall be used in attestation of writs, warrants or other proceedings, acts, judgment or decrees of said court, in the same manner and to the same effect as the seal of other courts in the State of North Carolina". And in Section 15 of this act, it is further declared that "The Judge of said court may issue his process to the chief of police or to the city police of the city of Greensboro, or to the sheriff, constable or other lawful officers of the county of Guilford or of any other county in the State of North Carolina, and such process, when attested by the seal of said court, shall run anywhere in the State of North Carolina and shall be executed by all officers and returns made according to law: Provided, no seal shall be required upon any process issued by or from said court to any officer of the city of Greensboro or the county of Guilford".

Thus from the provisions of Section 15, it is clear that the General Assembly has given the court the power to issue its process, to run beyond the limits of Guilford County, only "when attested by the seal of said court". And it is held by this court that the powers of a court of limited jurisdiction cannot be enlarged by *624 implication. Thompson v. Cox, 53 N.C. 311; Evans v. Singletary, 63 N.C. 205. Nor may the recognition of the subpœna, and the service of it by an officer of the city of Wilmington in New Hanover County, give character to it which it did not possess at the time of its issuing. Shepherd v. Lane, 13 N.C. 148; Gardner v. Lane, 14 N.C. 53, 54; Seawell v. Bank of Cape Fear, 14 N.C. 279, 22 Am.Dec. 722.

Hence, the issuance of the subpœna in question, for service in New Hanover County, not being attested by the seal of the court, exceeded the power given to the court by the General Assembly. The subpœna so issued lacked the force of a lawful process, and service of it by an officer in New Hanover County was a nullity.

Moreover, the finding of fact that defendant stated that the subpœna had been duly served upon him is not sufficient to constitute a waiver of the fatal deficiency of the subpœna. Nor does the voluntary surrender of defendant, after the court had ordered him to be arrested, and the execution of a bond for his appearance at a future date, vitalize the subpœna as a lawful process, applicable to his previous contemptuous conduct.

And while the facts found by the court below show defendant in contemptuous attitude in respect of his appearance as a witness in the court, he may not be held in contempt therefor except in the manner provided by law.

In view of the decision here, it is not necessary to consider and treat other contentions of defendant.

For reasons stated hereinabove, the judgment from which appeal is taken is

Reversed.