Howard v. Queen City Coach Co.

190 S.E. 478, 211 N.C. 329, 1937 N.C. LEXIS 87

• Court: Supreme Court of North Carolina
• Decided: March 17, 1937
• Status: Published

Opinion

DeviN, J.,

after stating the case: The principal question presented by this appeal is whether the resident judge of a judicial district, when acting in that capacity alone, has jurisdiction to hear and determine an appeal from an order of the clerk denying a motion to remove a cause to another county.

This question seems to have been decided by this Court in Ward v. Agrillo, 194 N. C., 321. From the well considered opinion by Connor, J., in that case we quote the following: “In the absence of statutory provision to that effect, the resident judge of a judicial district has no jurisdiction to bear and determine an appeal from a judgment of the clerk of the Superior Court of any county in bis district, rendered pursuant to the provisions of 3 C. S., 593, except when such judge is holding the courts of the district by assignment under the statute, or is holding a term of court by exchange, or under a special commission from the Governor. No jurisdiction is conferred upon the resident judge by the requirement of the Constitution that every judge of the Superior Court shall reside in the district for which be is elected.”

It follows that, upon the record before us, the resident judge was without jurisdiction to make the order appealed from.

Nor may the fact tbat counsel for defendant appeared at the bearing be held to constitute a waiver. While a party may waive bis right to have a cause removed, be cannot by consent or by appearance confer jurisdiction wben there is none in law. Dees v. Apple, 207 N. C., 763; Realty Co. v. Corpening, 147 N. C., 613.

It is necessary, therefore, tbat this case be remanded to tbe Superior Court of McDowell County in order tbat the judge bolding the courts of said county may bear and determine the appeal from tbe order of tbe clerk.

Error and remanded.