Baker v. Varser

Annotate this Case

79 S.E.2d 757 (1954)

239 N.C. 180

BAKER v. VARSER et al.

No. 601.

Supreme Court of North Carolina.

January 15, 1954.

*761 R. P. Upchurch, Raleigh, for plaintiff appellee.

Bennett H. Perry, Henderson, for defendants appellants.

WINBORNE, Justice.

While appellants present on this appeal numerous other assignments of error, decision here turns upon the one based on exceptions to the orders involved, on the ground that, at the time and under the existing situation, Judge Harris did not have jurisdiction to enter them. If he did not have such jurisdiction, and it is held that he did not, his action in signing the orders is in law a nullity, and must be so declared. For the jurisdiction of the Supreme Court is derivative. Shepard v. Leonard, 223 N. C. 110, 25 S.E.2d 445.

The jurisdiction of a regular judge of the Superior Court over the subject matter of an action depends upon the authority granted to him by the Constitution and laws of the State, and is fundamental. McIntosh's N. C. P & P 7; Stafford v. Gallops, 123 N.C. 19, 31 S.E. 265. And objection to such jurisdiction may be made at any time during the progress of the action. This principle is enunciated and applied in a long line of decisions in this State. See Henderson County v. Smyth, 216 N.C. 421, 5 S.E.2d 136, where prior cases are listed, including Burroughs v. McNeill, 22 N.C. 297, and Branch v. Houston, 44 N.C. 85. See also Lewis v. Harris, 238 N.C. 642, 78 S.E.2d 715, and cases cited; also Spaugh v. City of Charlotte, N.C., 79 S.E.2d 748.

In Burroughs v. McNeill, supra, it is stated, in opinion by Gaston, J., that: "The instant that the court perceives that it is exercising, or is about to exercise, a forbidden or ungranted power, it ought to stay its action, and, if it does not, such action is, in law, a nullity."

And to like effect is Branch v. Houston, supra, where Pearson, J., wrote: "If there be a defect, e. g., a total want of jurisdiction apparent upon the face of the proceedings, the court will of its own motion, `stay, quash, or dismiss' the suit. This is necessary to prevent the court from being forced into an act of usurpation, and compelled to give a void judgment * * *. So, ex necessitate, the court may, on plea, suggestion, motion, or ex mero motu, where the defect is apparent, stop the proceedings."

In this connection the Court will take judicial notice of the fact that at the time of the signing of the orders in question, the Honorable W. C. Harris was the regularly elected judge of, and by rotation *762 was assigned to hold the terms of the Superior Court of the seventh Judicial District in the eastern division of North Carolina; that he was not then assigned to hold any term of Superior Court, regular or special, in New Hanover, or any other county, in the Eighth Judicial District in the eastern division of North Carolina; and that New Hanover County, in which this action was instituted is located in the Eighth Judicial District aforesaid. General Statutes, Chap. 7, subchapter II, Article 7. Greene v. Stadiem, 197 N.C. 472, 149 S.E. 685.

And the record on this appeal discloses the fact that the orders in question were signed "at chambers * * * at Wilmington, N. C." In this respect the Court will take notice of the fact, also, that Wilmington, North Carolina, is situated in the county of New Hanover.

In this situation, did Judge Harris have jurisdiction to entertain a petition for, and to grant a writ of mandamus in the instant action? The Constitution and laws of North Carolina say "No".

The Constitution of North Carolina declares: That the judicial power of the State, other than a court for the trial of impeachments, a Supreme Court, courts of justices of the peace, and such other courts inferior to the Supreme Court as may be established by law, shall be vested in Superior Courts. Art. IV, Sec. 2.

In respect to "Judicial districts for Superior Courts", the Constitution, Art. IV, Sec. 10, declares that "The General Assembly shall divide the State into a number of judicial districts * * * and shall provide for the election of one or more Superior Court judges for each district"; and that "There shall be a Superior Court in each county at least twice in each year * * *"

And in respect to "Judicial districts; rotation * * * assignment of Superior Court judges by Chief Justice", the Constitution, Art. IV, Sec. 11, declares that "Each judge of the Superior Court shall reside in the district for which he is elected"; that "The General Assembly may divide the State into a number of judicial divisions"; that "The judges shall preside in the courts of the different districts within a division successively; but no judge shall hold all the courts in the same district oftener than once in four years"; and that "The Chief Justice, when in his opinion the public interest so requires, may assign any Superior Court judge to hold one or more terms of Superior Court in any district."

These provisions of the Constitution have been implemented by enactments of the General Assembly: (1) dividing the State into Twenty-one judicial districts for each of which a judge shall be chosen in the manner provided by law, G.S. § 7-40; (2) numbering the districts first to twenty-first, composed of designated counties respectively, G.S. § 7-68; (3) dividing the State into two judicial divisions, the Eastern and Western Judicial Divisions,the counties included in judicial districts from one to ten, both inclusive, to constitute the Eastern Division, and those in judicial districts from eleven to twenty-one, both inclusive, to constitute the Western Division, G.S. § 7-69; (4) directing that the judges of the Superior Court shall hold the courts of the several judicial districts successively, according to a specified order and systemthe judges resident in the Eastern Judicial Division to hold the courts in that division, and the judges in the Western Judicial Division to hold the courts in that division, for spring and fall terms successively,the judge riding any spring circuit to hold all the courts which fall between January and June, both inclusive, and the judge riding any fall circuit to hold all the courts which fall between July and December, both inclusive, G.S. § 7-74; also West v. F. W. Woolworth Co., 214 N.C. 214, 198 S.E. 659; and (5) requiring that every judge of the Superior Court shall reside in the district for which he is elected; that the judges shall preside in the courts of the different districts successively, but no judge shall *763 hold the courts in the same district oftener than once in four years; and that the Chief Justice, when in his opinion the public interest so requires, may assign any Superior Court judge to hold one or more terms of Superior Court in any district. G.S. § 7-46, as amended by 1951 Session Laws Chap. 471, Sec. 2.

Moreover, the General Assembly in respect to "Jurisdiction in vacation or at term" amended G.S. § 7-65 to read as follows: "In all cases where the superior court in vacation has jurisdiction, and all of the parties unite in the proceedings, they may apply for relief to the superior court in vacation, or in term time, at their election. The resident judge of the judicial district and any special superior court judge residing in the district and the judge regularly presiding over the courts of the district, shall have concurrent jurisdiction in all matters and proceedings where the superior court has jurisdiction out of term: Provided, that in all matters and proceedings not requiring the intervention of a jury or in which trial by jury has been waived, the resident judge of the judicial district and any special superior court judge residing in the district shall have concurrent jurisdiction with the judge holding the courts of the district and the resident judge and any special superior court judge residing in the district in the exercise of such concurrent jurisdiction may hear and pass upon such matters and proceedings in vacation, out of term or in term time * * *."

Thus it is manifest that under the statute relating to rotation of judges, G.S. § 7-74, a regular Superior Court judge assigned to a district is the judge of that district for six months beginning 1 January, or 1 July as the case may be, Hamilton v. Icard, 112 N.C. 589, 17 S.E. 519, and City of Reidsville v. Slade, 224 N.C. 48, 29 S.E.2d 215, and within such period, has jurisdiction of all "in chambers" matters arising in the district, but that such jurisdiction is limited to such matters. See Shepard v. Leonard, supra.

In this Shepard case [223 N.C. 110, 25 S.E.2d 447], speaking to the subject, Barnhill, J., has stated: "It may be said that a regular judge holding the courts of the district has general jurisdiction of all `in chambers' matters arising in the district. * * * The general `vacation' or `in chambers' jurisdiction of a regular judge arises out of his general authority. Usually it may be exercised anywhere in the district and it is never dependent upon and does not arise out of the fact that he is at the time presiding over a designated term of court or in a particular county. As to him, it is limited, ordinarily, to the district to which he is assigned by statute. It may not be exercised even within the district of his residence except when specially authorized by statute", citing Ward v. Agrillo, 194 N.C. 321, 139 S.E. 451, and Howard v. Queen City Coach Co., 211 N.C. 329, 190 S.E. 478.

Too, it may be noted that G.S. § 7-65, thereafter amended, gives concurrent jurisdiction as hereinabove shown. But the jurisdiction is not extended beyond the limits of the district. Hence the fact that Judge Harris, at the time here involved, was both the regular judge holding the courts of, and the resident judge of the Seventh Judicial District did not enlarge his jurisdiction. Rather, under such circumstances, his jurisdiction "in vacation" and "in chambers" was limited to matters arising only in the Seventh Judicial District.

It is contended, however, that under the provisions of G.S. § 1-493 judges of the the Superior Court have jurisdiction to grant injunctions and restraining orders in all civil actions and proceedings. True enough! But we are here dealing with mandamus, and not with injunctions or restraining orders.

Here the Board of Law Examiners, an administrative agency of the State of North Carolina, had taken final action on a matter within its jurisdiction. Plaintiff, being dissatisfied with the ruling of the *764 Board, made after hearing, seeks a judicial review, and a reversal of the action so taken by the Board. For this purpose, "mandamus is not a proper instrument", as stated by this Court in opinion by Seawell, J., in Warren v. Maxwell, 223 N.C. 604, 27 S.E.2d 721, citing Pue v. Hood, 222 N.C. 310, 22 S.E.2d 896, 898. In the Pue case, opinion by Barnhill, J., it is said that: "The issuance of a writ of mandamus is an exercise of original and not appellate jurisdiction * * * and is never used as a substitute for an appeal."

Moreover, in the Warren case, supra [223 N.C. 604, 27 S.E.2d 724], it is said: "If there has been an error in law, prejudicial to the parties, or the board has exceeded its authority, or has mistaken its power, or has abused its discretionwhere the statute provides no appealthe proper method of review is by certiorari", citing numerous cases.

So, if it be conceded that there was in effect no provision for an appeal from the Board of Law Examiners, the statute, G. S. § 1-269, provides that writ of certiorari is authorized as heretofore in use.

In this connection the Court will not review or reverse the exercise of discretionary power by an administrative agency except upon a showing of capricious, unreasonable or arbitrary action, or disregard of law. See State ex rel. Utilities Com. v. Ray, 236 N.C. 692, 73 S.E.2d 870, opinion by Denny, J.

When tested by this rule the complaint of plaintiff, liberally interpreted, seems to allege that the Board of Law Examiners in considering the question of his residence within the State for twelve months, acted in misapprehension of what is in law "residence" within the purview of rule five governing admission to the practice of law in the State of North Carolina. It that be true, he would be entitled to have the Board act in the light of the true meaning of the term. McGill v. Town of Lumberton, 215 N.C. 752, 3 S.E.2d 324, and numerous cases cited in Shepard's N.C. Citations of headnote 3 of the McGill case.

Hence, rather than to dismiss the action, it is deemed proper that the complaint may be considered an application to the Superior Court for a writ of certiorari to the end that the record of pertinent proceeding in respect to question of rule applied in determining residence of plaintiff within the State in connection with his application for bar examination, may be judicially reviewed.

Hence the orders from whch appeal is taken are hereby reversed, and the proceeding is remanded to Superior Court for further consideration in the light of this opinion.

Reversed and remanded.