Hill v. . Stansbury

Supreme Court of North Carolina

Hill v. . Stansbury

30 S.E.2d 150, 224 N.C. 356, 1944 N.C. LEXIS 359

CourtSupreme Court of North Carolina

DecidedMay 24, 1944

StatusPublished

Cited by7 cases

This text of 30 S.E.2d 150 (Hill v. . Stansbury) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hill v. . Stansbury, 30 S.E.2d 150, 224 N.C. 356, 1944 N.C. LEXIS 359 (N.C. 1944).

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Opinion

Stacy, C. J.

It is provided by G. S., 128-10 (formerly C. S., 3206), that the citizen and taxpayer who sues in an action like the present and recovers, “shall receive one-third part, up to the sum of five hundred dollars, of the amount recovered, to indemnify him for his services, but the amount received by the taxpayer and citizen as indemnity shall in no case exceed five hundred dollars.” In the instant case, however, the complaint alleges “the plaintiffs disclaim any right personally to participate in the proceeds of any recovery that may be had in the suit.” Hence, no provision was made in the judgment entered in the cause for indemnifying the plaintiffs for their services. Nor was any mention made of the matter in the consent judgment dismissing the appeals which was approved by the resident judge of the district on 18 September, 1943.

The petition filed by Thomas J. Hill before the resident judge at chambers for expenses and counsel fees bears verification 17 September, 1943, and is marked “Filed, this Oct. 15, 1943.” The question raised at the threshold of the hearing on the petition was the jurisdiction and authority of the resident judge to entertain the petition or to act upon it. We agree with the appellants that he had none.' G. S., 7-65 (formerly C. S., 1438); 14 Am. Jur., 362, et seq. His jurisdiction over the matter, if at any time he had any, ended with the signing of the consent judgment dismissing the appeals. 21 C. J. S., 147; McIntosh on Procedure, sec. 518.

Where there is a want of jurisdiction either over the person, the cause, or the process, it is the same as if there were no court. Proceedings so had are said to be coram non judice, and are void. Monroe v. Niven, 221 N. C., 362, 20 S. E (2d), 311; Greene v. Stadiem, 197 N. C., 472, 149 S. E., 685; S. v. Baxter, 208 N. C., 90, 179 S. E., 450; Grumon v. Raymond, 1 Conn., 40, 6 Am. Dec., 200. “Where there is no jurisdiction of the subject matter the whole proceeding is void ab initio and may be treated as a nullity anywhere, at any time, and for any purpose.” High v. Pearce, 220 N. C., 266, 17 S. E. (2d), 108.

It follows, therefore, that the order entered on the petition is without force or effect. It may be disregarded. McIntosh on Procedure, 460.

Error.

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Stacy, C. J.

It is provided by G. S., 128-10 (formerly C. S., 3206), that the citizen and taxpayer who sues in an action like the present and recovers, “shall receive one-third part, up to the sum of five hundred dollars, of the amount recovered, to indemnify him for his services, but the amount received by the taxpayer and citizen as indemnity shall in no case exceed five hundred dollars.” In the instant case, however, the complaint alleges “the plaintiffs disclaim any right personally to participate in the proceeds of any recovery that may be had in the suit.” Hence, no provision was made in the judgment entered in the cause for indemnifying the plaintiffs for their services. Nor was any mention made of the matter in the consent judgment dismissing the appeals which was approved by the resident judge of the district on 18 September, 1943.

The petition filed by Thomas J. Hill before the resident judge at chambers for expenses and counsel fees bears verification 17 September, 1943, and is marked “Filed, this Oct. 15, 1943.” The question raised at the threshold of the hearing on the petition was the jurisdiction and authority of the resident judge to entertain the petition or to act upon it. We agree with the appellants that he had none.' G. S., 7-65 (formerly C. S., 1438); 14 Am. Jur., 362, et seq. His jurisdiction over the matter, if at any time he had any, ended with the signing of the consent judgment dismissing the appeals. 21 C. J. S., 147; McIntosh on Procedure, sec. 518.

Where there is a want of jurisdiction either over the person, the cause, or the process, it is the same as if there were no court. Proceedings so had are said to be coram non judice, and are void. Monroe v. Niven, 221 N. C., 362, 20 S. E (2d), 311; Greene v. Stadiem, 197 N. C., 472, 149 S. E., 685; S. v. Baxter, 208 N. C., 90, 179 S. E., 450; Grumon v. Raymond, 1 Conn., 40, 6 Am. Dec., 200. “Where there is no jurisdiction of the subject matter the whole proceeding is void ab initio and may be treated as a nullity anywhere, at any time, and for any purpose.” High v. Pearce, 220 N. C., 266, 17 S. E. (2d), 108.

It follows, therefore, that the order entered on the petition is without force or effect. It may be disregarded. McIntosh on Procedure, 460.

Error.

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30 S.E.2d 150, 224 N.C. 356, 1944 N.C. LEXIS 359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hill-v-stansbury-nc-1944.

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