In Re Davis'custody

103 S.E.2d 503 (1958)

248 N.C. 423

In the Matter of the CUSTODY OF Cathy Candice DAVIS and Karen Jill Davis.

No. 673.

Supreme Court of North Carolina.

May 21, 1958.

William W. White, Jr., Clearwater, Fla., for Barbara R. Davis, appellant.

Blackwell M. Brogden, Durham, for Charles R. Davis, Appellee.

PARKER, Justice.

It is by no means certain that the Domestic Relations Court of the city of Charlotte will ever make any order respecting the custody of the two infant daughters of Charles R. Davis. Judge Hall in his order of 15 October 1957 did not restrain Barbara R. Davis, her counsel, and the Judge of the Domestic Relations Court of the city of Charlotte from hearing the petition of Barbara R. Davis, but made what his order calls findings of fact, and merely rendered an advisory opinion that "Charles R. Davis shall not be bound by any order of the Domestic Relations Court of the city of Charlotte in Mecklenburg County respecting the custody of Cathy Candice Davis and Karen Jill Davis, minors, from this date forward." In rendering this advisory opinion, Judge Hall committed error.

This Court said in Poore v. Poore, 201 N.C. 791, 161 S.E. 532: "It is no part of the function of the courts, in the exercise of the judicial power vested in them by the Constitution, to give advisory opinions, or to answer moot questions, or to maintain a legal bureau for those who may chance to be interested, for the time being, in the pursuit of some academic matter."

To find that Judge Hall committed error in rendering an advisory opinion, without more, would leave the crucial question of whether the Judge of the Superior Court of Durham County should restrain Barbara R. Davis, her counsel, and the Judge of the Domestic Relations Court of *506 the city of Charlotte from hearing her petition filed with it unsettled, and would, probably, result in an effort by Charles R. Davis in the Superior Court of Durham County to obtain an injunction, as requested in his bill quia timet. Ordinarily, questions not determinative of the appeal are not decided, but in this instance we feel justified in expressing our opinion under the facts here. It is a pure question of law. For a similar procedure on our part see De Bruhl v. State Highway & Public Works Commission, 245 N.C. 139, 95 S.E.2d 553.

This Court said in N. Jacobi Hardware Co. v. Jones Cotton Co., 188 N.C. 442, 124 S.E. 756, 758: "There is a bill known as quia timet. `A bill quia timet is in the nature of a writ of prevention, and is entertained as a measure of precaution, justice, and to forestall wrongs or anticipated mischiefs, as where a guardian or other trustee is squandering an estate, or where one in possession of property which another unjustly claims is likely to lose the evidence of his title by delay in asserting and testing the hostile claim. Bailey v. Briggs, 56 N.Y. 407, 415.' Words and Phrases, p. 452.[1] Fittichauer v. Metropolitan Fire Proofing Co., 70 N.J.Eq. 429, 61 A. 746, 748."

McIntosh's N.C.Practice and Procedure, 2d Ed., Sec. 2470, states: "Bills quia timet were known in the old equity practice as a preventive remedy, so named from the fear of the party that future probable injury might be done to his rights in property. It was distinguished from a bill of peace by the purpose in view, the bill of peace being to prevent vexatious litigation, and a bill quia timet to prevent future litigation by removing existing causes or difficulties. Two forms of this bill were used to preserve evidence, and a third to quiet title by removing a cloud which might affect it." Sections 2471, 2472, 2473 and 2474 of McIntosh's work discuss the use of this bill to preserve evidence, to quiet title, and statutory changes. See also 30 C.J.S. Equity § 40, p. 363, as to bills quia timet.

A bill quia timet does not appy to a factual situation such as we have here.

There is an equitable remedy known as a bill of peace to prevent vexatious litigation and a multiplicity of suits, but under the facts here such a bill has no application. N. Jacobi Hardware Co. v. Jones Cotton Co., supra; 19 Am.Jur., Equity, Sec. 81, entitled "Repeated or Continuing Wrongs; Bill of Peace"; McIntosh, Ibid., Sec. 2469.

Charles R. Davis, by what he calls a bill quia timet, seeks to restrain Barbara R. Davis, her counsel, and the Judge of the Domestic Relations Court of the city of Charlotte from hearing the petition filed in that court by her, on the ground that court has no jurisdiction to pass on the question of the custody of his children by reason of Judge Hall's order of 31 July 1957.

Ordinarily, an injunction will not be granted where there is a full, adequate and complete remedy at law, which is as practical and efficient as is the equitable remedy. Whitford v. North Carolina Joint-Stock Land Bank, 207 N.C. 229, 176 S.E. 740; Town of Clinton v. Ross, 226 N.C. 682, 40 S.E.2d 593; Armstrong v. Armstrong, 230 N.C. 201, 52 S.E.2d 362; Amazon Cotton Mills Co. v. Duplan Corp., 245 N.C. 496, 96 S.E.2d 267; 43 C.J.S. Injunctions § 25, pp. 450-453.

If a court finds at any stage of the proceedings, that it is without jurisdiction, it is its duty to take proper notice of the defect, and stay, quash or dismiss the suit. Henderson County v. Smyth, 216 N.C. 421, 5 S.E.2d 136; 21 C.J.S. Courts § 114, p. 176. "This is necessary, to prevent the court from being forced into an act of usurpation, and compelled to give a void *507 judgment. * * * So, ex necessitate, the court may, on plea, suggestion, motion, or ex mero motu, where the defect of jurisdiction is apparent, stop the proceeding." Branch v. Houston, 44 `N.C. 85.

Charles R. Davis, if his position is sound that the Domestic Relations Court of the city of Charlotte has no jurisdiction, is not entitled to the equitable relief of an injunction as prayed for in his motion, for the simple reason that he has a full, adequate and complete remedy at law, which is as practical and efficient and as prompt in its administration as an injunction, by making a motion in the Domestic Relations Court of the city of Charlotte to dismiss the petition filed in that court by Barbara R. Davis for lack of jurisdiction.

The appellee Charles R. Davis will be taxed with the costs.

Error.

[1] 5 Words and Phrases, Bill Quia Timet, p. 516.