Pruden v. Keemer

136 S.E.2d 604 (1964)

262 N.C. 212

Nancy PRUDEN, Mary P. Willis and Virgie P. Phelps, Petitioners, v. J. B. KEEMER and wife, Ella Keemer, and John Henry Bullocks and wife, Ophelia Bullocks, Respondents.

No. 172.

Supreme Court of North Carolina.

June 12, 1964.

*606 Pritchett & Cooke, Windsor, for petitioner appellees.

*607 James R. Walker, Jr., Weldon, Samuel S. Mitchell, Raleigh, Robert L. Harrell, Sr., Asheville, and T. T. Clayton, Warrenton, for respondent appellants.

BOBBITT, Justice.

The basic question is whether the clerk had jurisdiction to enter the purported default judgment of August 1, 1961. If not, said purported judgment is absolutely void and must be treated as a nullity. Deans v. Deans, 241 N.C. 1, 9-10, 84 S.E.2d 321, and cases cited.

The clerk of the superior court has no common law or equitable jurisdiction. McCauley v. McCauley, 122 N.C. 288, 30 S.E. 344. The clerk is a court "of very limited jurisdiction,having only such jurisdiction as is given by statute." Moore v. Moore, 224 N.C. 552, 555, 31 S.E.2d 690, and cases cited; In re Dunn, 239 N.C. 378, 383, 79 S.E.2d 921; Deans v. Deans, supra. As stated by Seawell, J., in Johnston County v. Ellis, 226 N.C. 268, 279, 38 S.E.2d 31: "The jurisdiction of the Clerk of the Superior Court is statutory and limited, and can be exercised only with strict observance of the statute."

A special proceeding under G.S. § 38-1 through G.S. § 38-3 may be instituted by an owner of land whose boundary lines are in dispute. G.S. § 38-1. "Title or ownership is not directly put in issue in a processioning proceeding." Bumgarner v. Corpening, 246 N.C. 40, 43, 97 S.E.2d 427, and cases cited. The sole purpose of a processioning proceeding is to establish the true location of disputed boundary lines.

In determining the true location of a disputed boundary line, this legal principle is well settled: "What constitutes the line, is a matter of law; where it is, is a matter of fact." McCanless v. Ballard, 222 N.C. 701, 703, 24 S.E.2d 525; Jenkins v. Trantham, 244 N.C. 422, 426, 94 S.E.2d 311.

"The default admits only the averments in the complaint, and if these are insufficient to warrant the plaintiff's recovery, no judgment can be given; as where it appears that the court has no jurisdiction or the facts do not constitute a cause of action." McIntosh, North Carolina Practice and Procedure § 634, p. 713; Howze v. McCall, 249 N.C. 250, 255, 106 S.E.2d 236. Respondents' failure to answer (default) constituted an admission of the facts alleged in the petition. The question is whether these facts were sufficient to vest in the clerk jurisdiction to enter the purported default judgment of August 1, 1961.

Facts alleged in the petition and deemed admitted are: Petitioners own the described tract of land. Respondent Keemer is "adjoining landowner" and his lands "are affected by this proceeding"; and a lot purchased by respondents Bullock from Keemer "will be affected by the location of the said line."

Petitioners prayed that "the location of the boundary line" of their land "be fixed as set out in the petition." The petition contains no allegation as to what boundary line is in dispute. Indeed, there is no allegation that any boundary line is in dispute. Only disputed boundary lines are the subject of processioning proceedings. G.S. § 38-1.

The burden of proof rests upon a petitioner to establish the true location of a disputed boundary line. Plemmons v. Cutshall, 234 N.C. 506, 67 S.E.2d 501; McCanless v. Ballard, supra. It is equally true, under general rules applicable to pleadings and specifically under G.S. § 38-3, that a petitioner must allege the true location of a disputed boundary line.

G.S. § 38-3, in pertinent part, provides: "The owner shall file his petition under oath stating therein facts sufficient to constitute the location of such line as claimed by him and making defendants all adjoining owners whose interest may be affected *608 by the location of said line. The clerk shall thereupon issue summons to the defendants as in other cases of special proceedings. If the defendants fail to answer, judgment shall be given establishing the line according to petition." (Our italics.) As under prior statutes relating to processioning proceedings (Chapter 48, The Code of 1883; Forney v. Williamson, 98 N.C. 329, 4 S.E. 483; Euliss v. McAdams, 101 N.C. 391, 7 S.E. 725), a strict observance of statutory provisions in all material respects is required.

The clerk's jurisdiction to enter a judgment by default in a processioning proceeding is based solely on the italicized sentence in the quoted portion of G.S. § 38-3. In our view, and we so hold, a petition in compliance with statutory requirements is a prerequisite to the clerk's jurisdiction to enter such default judgment.

There are eleven calls in petitioners' description of their land. Petitioners reversed four of these calls (tenth, ninth, eighth and seventh) and alleged these (reversed) calls constitute "the true and correct location of the line of petitioners' lands * * * as claimed by them."

G.S. § 38-3 provides that petitioner allege "facts sufficient to constitute the location of such line as claimed by him." This provision requires that petitioner allege facts as to the location of the (disputed) line as claimed by him with sufficient definiteness that its location on the earth's surface may be determined from petitioner's description thereof.

What are petitioners' lines is determinable as a matter of law from the calls in the description of their lands. Where these lines are located on the earth's surface is determinable as a matter of fact. The petition is deficient in that it does not allege facts sufficient to identify the location of any (disputed) line "as claimed" by petitioners. While our statutory provisions control decision, the result appears to be in substantial accord with decisions in other jurisdictions. 12 Am.Jur.2d, Boundaries § 97; 11 C.J.S. Boundaries § 103.

What lines, if any, are disputed? Where are the disputed lines, if any, located on the earth's surface? Petitioners' allegations provide no answer. (While not considered material, it is noted that petitioners did not attach to the petition a plat purporting to show Lot No. 5 of the Jacob Pruden land division.) The petition is fatally defective and insufficient to confer jurisdiction on the clerk. Hence, the purported default judgment of August 1, 1961, is absolutely void and must be treated as a nullity.

Having reached the conclusion the purported default judgment of August 1, 1961, is absolutely void and must be treated as a nullity, consideration of other questions raised by the appeal and discussed in the briefs is unnecessary.

Reversed.