In Re Dewey

Supreme Court of North Carolina

In Re Dewey

175 S.E. 161, 206 N.C. 714, 1934 N.C. LEXIS 288

CourtSupreme Court of North Carolina

DecidedJune 20, 1934

StatusPublished

Cited by1 cases

This text of 175 S.E. 161 (In Re Dewey) 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

In Re Dewey, 175 S.E. 161, 206 N.C. 714, 1934 N.C. LEXIS 288 (N.C. 1934).

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Opinion

BbogdeN, J.

The petitioner apparently takes the position that the order of the clerk confining him in the State Hospital should be declared null and void and that he be discharged. This contention cannot be maintained. The affidavit filed in accordance with C. S., 2285, conferred jurisdiction upon the clerk. However, as the order of the clerk was *716 made in direct violation of the provision of said statute, such order was without warrant of law. Nevertheless the petitioner made a motion in the cause expressly requesting that the cause “be reinstated upon the docket,” and upon the failure of the clerk to strike out the original order, he appealed to the judge of the Superior Court. Consequently, the matter was before the judge and he had the power to deal with it. A similar situation is disclosed by In re Anderson, 132 N. C., 243, 43 S. E., 649. The Court said: “Although the proceedings originally had before the clerk were a nullity for the reasons already pointed out, yet when the matter got into the Superior Court by appeal, that court then acquired jurisdiction.” In the later case of Bank v. Leverette, 187 N. C., 743, 123 S. E., 68, the broad declaration of the law in the Anderson case, supra, was adverted to and harmonized. Both of said cases, however, are in full support of the judgment entered by the trial judge and his ruling is affirmed.

Affirmed.

SchuNOK, I., took no part in the consideration or decision of this case.

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BbogdeN, J.

The petitioner apparently takes the position that the order of the clerk confining him in the State Hospital should be declared null and void and that he be discharged. This contention cannot be maintained. The affidavit filed in accordance with C. S., 2285, conferred jurisdiction upon the clerk. However, as the order of the clerk was *716 made in direct violation of the provision of said statute, such order was without warrant of law. Nevertheless the petitioner made a motion in the cause expressly requesting that the cause “be reinstated upon the docket,” and upon the failure of the clerk to strike out the original order, he appealed to the judge of the Superior Court. Consequently, the matter was before the judge and he had the power to deal with it. A similar situation is disclosed by In re Anderson, 132 N. C., 243, 43 S. E., 649. The Court said: “Although the proceedings originally had before the clerk were a nullity for the reasons already pointed out, yet when the matter got into the Superior Court by appeal, that court then acquired jurisdiction.” In the later case of Bank v. Leverette, 187 N. C., 743, 123 S. E., 68, the broad declaration of the law in the Anderson case, supra, was adverted to and harmonized. Both of said cases, however, are in full support of the judgment entered by the trial judge and his ruling is affirmed.

Affirmed.

SchuNOK, I., took no part in the consideration or decision of this case.

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Bluebook (online)

175 S.E. 161, 206 N.C. 714, 1934 N.C. LEXIS 288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dewey-nc-1934.

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