Moore v. . Moore

31 S.E.2d 690, 224 N.C. 552, 1944 N.C. LEXIS 425

• Court: Supreme Court of North Carolina
• Decided: October 18, 1944
• Status: Published

Opinion

'WiNBORNE, J.

The contention of defendant, appellant, that the court erred in denying his plea in abatement is-well taken.

In this State a civil action is deemed to be pending from the time it is-commenced until its final determination. McFetters v. McFetters, 219 N. C., 731, 14 S. E. (2d), 833, and authorities there cited. A civil action is commenced by the issuance of a summons. G. S., 1-88. The final determination is by judgment. G. S., 1-208.

In the light of these principles the question is whether the purported judgment of nonsuit signed by the clerk of Superior Court of Pamlico County is a judgment within the meaning of the statute, G. S., 1-208. We hold that it is void upon its face.

The clerks of the Superior Court are courts of very limited jurisdiction — having only such jurisdiction as is given by statute. Beaufort County v. Bishop, 216 N. C., 211, 4 S. E. (2d), 525; McCauley v. McCauley, 122 N. C., 288, 30 S. E., 344; Dixon v. Osborne, 201 N. C., 489, 160 S. E., 579. See also Ange v. Owens, ante, 514. Under the statute, G. S., 1-209, conferring on the clerks of the Superior Court authority to enter judgments of nonsuit, the authority is limited to judgments of voluntary nonsuit. And the wording of the judgment by which the clerk undertook to dismiss the action commenced on 11 April, 1941, shows that it is entered upon findings of fact, and, hence, manifestly is not a voluntary judgment. Therefore, the clerk, having undertaken to enter a kind of judgment which she had no jurisdiction to enter, the judgment so entered is void and is a nullity, and may be so treated at all times. Clark v. Carolina Homes, 189 N. C., 703, 128 S. E., 20; Fowler v. Fowler, 190 N. C., 536, 130 S. E., 315; Casey v. Barker, 219 N. C., 465, 14 S. E. (2d), 429. Thus there has been no final determi nation of the action in which the clerk attempted to enter judgment. That action between the same parties and upon substantially the same cause as the present action was pending when the present action was commenced and is still pending. When this is made to appear to the court by appropriate plea, answer or demurrer, and all material questions and rights can be determined therein, the latter action will be dismissed. Alexander v. Norwood, 118 N. C., 381, 24 S. E., 119; Emry v. Chappell, 148 N. C., 327, 62 S. E., 411; Allen v. Salley, 179 N. C., 147, 101 S. E., 545; Morrison v. Lewis, 197 N. C., 79, 147 S. E., 729; Underwood v. Dooley, 197 N. C., 100, 147 S. E., 686; 64 A. L. R., 656; Construction Co. v. Ice Co., 190 N. C., 580, 130 S. E., 165; Johnson v. Smith, 215 N. C., 322, 1 S. E. (2d), 834. Compare Kesterson v. R. R., 146 N. C., 276; 59 S. E., 871; Cook v. Cook, 159 N. C., 46, 74 S. E., 639; Brock v. Scott, 159 N. C., 513, 75 S. E., 724; Barnett v. Mills, 167 N. C., 576, 82 S. E., 826; Reed v. Mortgage Co., 207 N. C., 27, 175 S. E., 834.

The judgment from which this appeal is taken will be set aside. The

Action abates.