Shepard v. . Leonard

RarNhill, J. Tbe defendants insist that the order signed by Olive, Special Judge, is void for that it was entered without notice to them. O. S., 1823. We do not reach this question for discussion or decision for we are met at the threshold of this case by the more serious question of jurisdiction. “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.” Burroughs v. McNeill, 22 N. C., 297; Reid v. Reid, 199 N. C., 740, 155 S. E., 719; Washington County v. Land Co., 222 N. C., 637, 24 S. E.. (2d), 338. Our jurisdiction is derivative. If the Superior Court judge who signed the order was without jurisdiction we have none and it has been the consistent policy of this Court, in the absence of motion, to dismiss ex mero motu so soon as a defect in jurisdiction is made to appear. The commission issued to Olive, Special Judge, under which he was acting at the time he signed the order was “to hold the said Court of the County of Wake: second week regular civil term, January 18th, in the Seventh Judicial District.” It was issued under an agreement of exchange, Nimocks, J., the judge regularly holding courts of the Seventh Judicial District at the time, being commissioned to hold a term during the same week in Robeson County in lieu of Olive, Special Judge, who theretofore had been assigned and commissioned to hold the same. What jurisdiction, if any, in matters pending on the summons docket of Franklin County, a county within the same judicial district, vested in Olive, Special Judge, as the judge'presiding in Wake County, under and by virtue of said commission? The answer is none. The constitutional provision for the appointment of special judges is set out in Art. IV, sec. 11, of the Constitution as follows: “The General Assembly may by general laws provide for the selection of special or emergency judges to hold the Superior Courts of any county, or district, when the judge assigned thereto, by reason of sickness, disability, or other cause, is unable to attend and hold said court, and when no other judge is available to hold the same. Such special or emergency judges shall have the power and authority of regular judges of the Superior Courts, in the courts which they are so appointed to hold.” Pursuant to said constitutional provision the General Assembly, in the exercise of the power thus conferred, enacted ch. 51, Public Laws 1941, by amending previous statutes on the subject. Section 5 thereof is as follows: “To the end that such special judges shall have the fullest power and authority sanctioned by Article four, section eleven, of the *113 Constitution of North Carolina, ■ such judges are hereby vested, in the courts which they are duly appointed to hold, with the same power and authority in all matters whatsoever that regular judges holding the same courts would have. A special judge duly assigned to hold the court of a particular county shall have during said term of court, in open court and in chambers, the same power -and authority of a regular judge in all matters whatsoever arising in that judicial district that could properly be heard or determined by a regular judge holding the same term of court.” While under the constitutional provision the power and authority of special judges is or may be that of regular judges of the Superior Court, these judicial powers are to be exercised by special judges only “in the courts which they are so appointed to hold.” The authority -vested in the General Assembly to provide for the appointment of special judges and to define their jurisdiction is subject to this definite limitation and the General Assembly is without power to grant jurisdiction to special judges in excess thereof. Greene v. Stadiem, 197 N. C., 472, 150 S. E., 18; Reid v. Reid, supra; Ipock v. Bank, 206 N. C., 791, 175 S. E., 127. Speaking to the subject in Ipoch v. Bank, supra, Brogden, J., says: “Therefore, it is manifest that the power of special and emergency judges is defined and bounded by the words fin the courts which they are so appointed to hold.’ ” Civil actions pending on the civil issue docket of a county are always subject to motion in the cause. These motions may be made before the judge at term. In many instances they may be made out of term. When made at term the judge presiding, whether regular or special, has jurisdiction. To this extent sec. 5, ch. 51, Public Laws 1941, has full constitutional sanction. However, the Constitution, Art. IY, sec. 11, does not confer or authorize the Legislature to confer any “in chambers” or “vacation” jurisdiction upon special judges, assigned to hold a designated term of court. 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. Why then is not this jurisdiction conferred on a special judge by the statue within the limitations of the Constitution ? 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. Ward v. Agrillo, 194 N. C., 321, 139 S. E., 451; Howard v. Coach Co., 211 N. C., 329, 190 S. E., 478. *114 Under the statute, cb. 51, Public Laws 1941, enacted pursuant to Art. IY, sec. 11, of the Constitution, a special judge, during tbe term of the court be bas been assigned to bold, bas full and complete jurisdiction over all actions and proceedings on tbe dockets of tbat court and may act in respect thereto witb tbe same authority and to tbe same extent as a regular judge bolding tbe court under statutory assignment. This includes tbe right to bear and decide any and all motions made in causes pending on tbe dockets and to grant any and all proper orders in respect thereto. Once having acquired jurisdiction at term be, by consent, may bear tbe matter out of term nunc pro tunc. Edmundson v. Edmundson, 222 N. C., 181. On tbe other band, be bas no “vacation” jurisdiction and no jurisdiction in any cause pending in any other county either within or without tbe same judicial district. Any attempt by tbe Legislature to confer such jurisdiction goes beyond tbe limitations “in tbe courts which they are so appointed to bold” and is without constitutional sanction. Motions in causes pending on tbe dockets of a county can be beard “at term” only in tbat county. No judge bas any “at term” jurisdiction thereof except within tbe county. They, at times, are beard during a term of court in another county. Nonetheless they are beard by virtue of tbe “vacation” jurisdiction of tbe judge. This cause was pending on tbe summons docket of Franklin County. It was not at issue or subject to motion “in tbe court” in Wake County, over which Olive, Special Judge, was presiding. Tbe motion made and beard therein outside tbe county in which tbe cause was pending and tbe order entered thereon was “in chambers” and not “at term.” Hence, tbe order is void and of no effect. Even as to regular judges “it is tbe uniform bolding in this jurisdiction tbat, except by consent, or unless authorized by statute, a judge of tbe Superior Court, even in bis own district, bas no authority to bear a “cause or to make an order substantially affecting tbe rights of tbe parties, outside tbe county in which the action is pending.” Bisanar v. Suttlemyre, 193 N. C., 711, 138 S. E., 1; S. v. Humphrey, 186 N. C., 533, 120 S. E., 85; Scott Drug Co. v. Patterson, 198 N. C., 548, 152 S. E., 632; Bank v. Hagaman, 208 N. C., 191, 179 S. E., 759; S. v. Whitley, 208 N. C., 661, 182 S. E., 338. Tbe Governor, under tbe conditions and subject to tbe limitations set out in tbe quoted portion of tbe Constitution, may Commission a special judge to bold tbe courts of a district. What jurisdiction attaches under this type of commission is not brought in issue on this appeal. Tbat question is not discussed or decided. . Tbe order entered in tbe court below must be vacated. Reversed.