Martin Marietta Corp. v. Forsyth County Zoning Board of Adjustment

309 S.E.2d 523, 65 N.C. App. 316, 1983 N.C. App. LEXIS 3477

Opinions

WHICHARD, Judge.

Because petitioner withdrew its cross appeal, the order, except for the portion from which respondents appeal, has become the law of the case. Whether it is correct or erroneous, the parties are bound by it. Gower v. Insurance Co., 281 N.C. 577, 580, 189 S.E. 2d 165, 167 (1972); see also Gaskins v. Insurance Co., 260 N.C. 122, 124, 131 S.E. 2d 872, 873 (1963).

The law of this case is, then, that the court lacks personal jurisdiction over the respondents. When a court lacks jurisdiction, it is “without authority to enter any order granting any relief.” Swenson v. Assurance Co., 33 N.C. App. 458, 465, 235 S.E. 2d 793, 797 (1977). “When a court has no authority to act, its acts are void.” Russell v. Manufacturing Co., 266 N.C. 531, 534, 146 S.E. 2d 459, 461 (1966). A court without jurisdiction is, for example, without authority to entertain a motion for summary judgment or to enter any judgment except a formal order of dismissal, Sink v. Easter, 284 N.C. 555, 561, 202 S.E. 2d 138, 143 (1974); and it does not have the power to enter a default judgment, Russell v. Manufacturing Co., supra.

Because the court was “without authority to enter any order granting any relief,” Swenson, supra, it did not have authority to grant petitioner the relief of thirty days within which to commence a new action based on the same claim; and its action in this respect is void. In our view the foregoing authorities establish the invalidity of dicta to the contrary in the Court of Appeals version of Gower v. Insurance Co., 13 N.C. App. 368, 374-75, 185 S.E. 2d 722, 726-27 (1972), which dicta our Supreme Court expressly declined to approve or disapprove, see Gower, 281 N.C. at 581, 189 S.E. 2d at 168.

For the foregoing reasons, the portion of the order from which respondents appeal is

Vacated.

Chief Judge VAUGHN concurs. Judge Phillips dissents.