Lovegrove v. Lovegrove

Annotate this Case

74 S.E.2d 723 (1953)

237 N.C. 307


No. 92.

Supreme Court of North Carolina.

March 4, 1953.

*724 Cameron S. Weeks and T. Chandler Muse, Tarboro, for plaintiff appellant.

Fountain & Fountain, Tarboro, for defendant appellee.

BARNHILL, Justice.

We are met at the threshold of this appeal by a question of jurisdiction of which we must take judicial notice ex mero motu. Shepard v. Leonard, 223 N.C. 110, 25 S.E.2d 445; State v. Clarke, 220 N.C. 392, 17 S.E.2d 468; State v. Morgan, 226 N.C. 414, 38 S.E.2d 166; State v. Jones, 227 N.C. 94, 40 S.E.2d 700; State v. Miller, 225 N.C. 213, 34 S.E.2d 143.

The right to demand a change of venue and the authority of the courts to remove a cause from one county to another for trial is purely statutory. 56 A.J. 4, 5, 49, 61. And the clerk of the Superior Court, whether he was acting as such or as ex officio clerk of the recorder's court, *725 was without statutory authority to remove the cause to a local court in another county.

Article IV, sec. 2, of the Constitution established a Superior Court for the State as a whole, State v. Pender, 66 N.C. 313, and Article IV, sec. 10, requires terms thereof to be held "in each county at least twice in each year". The term "Superior Court" had a well-defined meaning at the time of the adoption of the Constitution. It was one court having state-wide jurisdiction, Rhyne v. Lipscombe, 122 N.C. 650, 29 S.E. 57.

The Code of Civil Procedure, General Statutes Ch. 1, applies to the Superior Court. Fisher v. Bullard, 109 N.C. 574, 13 S.E. 799; Mohn v. Cressey, 193 N.C. 568, 137 S.E. 718. In the subchapter designated "venue", G.S. 1, Ch. 1, Art. 7, it designates the county in which various types of actions shall be instituted, and when an action is instituted in a county which "is not the proper one", the judge is vested with authority to "change the place of trial" or remove the cause for trial to the county in which, under the statute, it should have been instituted, G.S. ยง 1-83. The word "venue", as used in the statute, means place of trial, Callaghan, Cyc.Law Dic., the place or county where the trial of a cause is to be held, Webster, New Int.Dic., 2d ed.

The authority thus vested in the Superior Court judge to remove a cause instituted in a county which "is not the proper one", as provided by the statute fixing the venue of actions, is the power to change the place of trial. The trial, nonetheless, is to be had in the same court which ordered its removalthe Superior Court.

The recorder's court of Nash County was created by statute, Ch. 633, P.L.1909, Ch. 176, P.L.L.1911. It is an inferior court the creation of which is authorized by Art. IV, sec. 2, of the Constitution. But it is a court for the County of Nash, wholly independent of any other court or system of courts.

It is vested with jurisdiction to try divorce actions, Ch. 768, S.L.1943, and "the same rules and practice as to venue of causes of action cognizable in said recorder's court, civil or criminal, shall apply as is now provided by law for the superior courts." Sec. 17, Ch. 176, P.L.L. 1911. Just what is the purpose, intent, and scope of the latter provision relating to venue we are not now called upon to decide. Suffice it to say that it may not be construed to confer the power or authority to remove a cause therein pending for trial to another local court in another county. Such removal not only changed the place of trial as authorized by our venue statute above cited but also the court in which the cause was to be tried. Jurisdiction could not thus be conferred on the recorder's court of Edgecombe County. Indeed the venue statute, as broad and comprehensive as it is, does not empower a superior court sitting in one county to transfer a cause for trial to an inferior court of another county.

The statutory provisions for change of venue "were only intended to provide for a change of the place of trial from the district court for one county to the same court for another county, and were never designed to authorize the transfer of an action from one court to another differently organized and possessing a different jurisdiction, as from a municipal court to the district court, or to a justice of the peace, or from the district court to a municipal court." Janney v. Sleeper, 30 Minn. 473, 16 N.W. 365, 366; Austin, Tomlinson & Webster Mfg. Co. v. Heiser, 6 S.W. 429, 61 N.W. 445; Brust v. First Nat. Bank, 184 Wis. 15, 198 N.W. 749.

It follows that this cause is still pending in the recorder's court of Nash County. The proceedings had and the orders entered in the recorder's court and in the Superior Court of Edgecombe County are without force or effect.

The jurisdiction of this court is derivative. Since the court below had no authority to enter the order from which plaintiff appealed, we have no jurisdiction to entertain the appeal on its merits. Stafford v. Wood, 234 N.C. 622, 68 S.E.2d 268.

The parties live in Edgecombe County. The subject of the actionthe marital status of the partiesis of necessity located in that county. Therefore we do not mean to say *726 that defendant may be compelled to defend the action pending in the recorder's court of Nash. She has a remedy, but it is not our custom to chart future proceedings in a cause not finally disposed of by us on appeal.

The appeal is dismissed and the cause is remanded with direction that the action be dismissed from the docket.

Appeal dismissed.