Collins v. . Wooten

Barnhill, J. A judge of the Superior Court, when not bolding tbe courts of the district of bis residence by assignment under tbe statute, or by exchange, or under a special commission from tbe Governor, has jurisdiction in matters pending in bis borne district only when such jurisdiction is expressly conferred by statute. No jurisdiction is conferred upon tbe resident judge by the requirement of tbe Constitution that every judge of tbe Superior Court shall reside in tbe district for which be is elected. Ward v. Agrillo, 194 N. C., 321; Howard v. Coach Co., 211 N. C., 329. Tbe approval by tbe resident judge of tbe order of tbe clerk allowing attorneys’ fees neither added to nor subtracted from its legal effect. It remained essentially an order of tbe clerk. There is no statute conferring upon tbe resident judge tbe duty or authority to approve or disapprove orders made by a clerk allowing attorneys’ fees in special proceedings. Tbe appeal by tbe defendants from tbe order of tbe clerk as approved by tbe resident judge was not an appeal from one judge of tbe Superior Court to another. Dail v. Hawkins, 211 N. C., 283; S. v. *361 Lea, 203 N. C., 316, 166 S. E., 292; Wellons v. Lassiter, 200 N. C., 474, are not in point. We are not called upon at this time to decide whether the clerk had the authority to allow counsel for the plaintiffs attorneys’ fees for services rendered in this proceeding. Even if it be conceded that the clerk possessed such power the defendants are entitled to have their appeal heard and determined by the judge of the Superior Oourt having jurisdiction thereof. There was error in the judgment, and the cause is remanded for a hearing upon defendants’ appeal. Error and remanded.