Robertson v. Smith

Court of Appeals of North Carolina

Robertson v. Smith

263 S.E.2d 36, 45 N.C. App. 535, 1980 N.C. App. LEXIS 2665

CourtCourt of Appeals of North Carolina

DecidedMarch 4, 1980

DocketNo. 7911DC875

StatusPublished

This text of 263 S.E.2d 36 (Robertson v. Smith) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Robertson v. Smith, 263 S.E.2d 36, 45 N.C. App. 535, 1980 N.C. App. LEXIS 2665 (N.C. Ct. App. 1980).

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Opinion

WEBB, Judge.

At the outset we note that the General Assembly has enacted the Uniform Child Custody Jurisdiction Act. This Act is codified as Chapter 50A of the General Statutes and is effective 1 July 1979. The Act does not exempt litigation pending in this state so it probably applies to this case. Neither party refers to the Act in their briefs. We do not refer to it further in this opinion because we do not feel it affects the reasoning or outcome of this case.

There being no evidence that there had been a change in circumstances after the entry of the Texas decree, the District Court of Harnett County is required by the full faith and credit clause, Article IV, § 1 of the United States Constitution, to enforce the Texas decree, Searl v. Searl, 34 N.C. App. 583, 239 S.E. 2d 305 (1977), unless the District Court of Harnett County did not have jurisdiction. The defendant argues that the District Court of Harnett County did not have jurisdiction because the identical suit involving the same parties and same subject matter had previously been filed in Durham County. The defendant relies on Stanback v. Stanback, 287 N.C. 448, 215 S.E. 2d 30 (1975) and In re Greer, 26 N.C. App. 106, 215 S.E. 2d 404 (1975). Those cases are distinguishable from the case sub judice in that in both Stanback and Greer no question was raised as to service of process. In the case sub judice, the record does not show there was any service of process on the plaintiff in the action filed by the defendant in Durham County. That action was filed on 5 October 1978. No service of process being had and no endorsement for an extension of time or alias or pluries summons being issued, the action was discontinued on 3 January 1979 under G.S. 1A-1, Rule 4(e). The plaintiff on 6 April 1979 filed a motion in the Durham County action praying for a change of venue or that the action, be dismissed. We hold that the filing of this motion did not revive an action that had been discontinued by operation of law. There was not an action pending in Durham County at the time the case sub judice was filed in Harnett County. The judgment of the District Court of Harnett County is proper.

Affirmed.

Judges PARKER and CLARK concur.

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WEBB, Judge.

At the outset we note that the General Assembly has enacted the Uniform Child Custody Jurisdiction Act. This Act is codified as Chapter 50A of the General Statutes and is effective 1 July 1979. The Act does not exempt litigation pending in this state so it probably applies to this case. Neither party refers to the Act in their briefs. We do not refer to it further in this opinion because we do not feel it affects the reasoning or outcome of this case.

There being no evidence that there had been a change in circumstances after the entry of the Texas decree, the District Court of Harnett County is required by the full faith and credit clause, Article IV, § 1 of the United States Constitution, to enforce the Texas decree, Searl v. Searl, 34 N.C. App. 583, 239 S.E. 2d 305 (1977), unless the District Court of Harnett County did not have jurisdiction. The defendant argues that the District Court of Harnett County did not have jurisdiction because the identical suit involving the same parties and same subject matter had previously been filed in Durham County. The defendant relies on Stanback v. Stanback, 287 N.C. 448, 215 S.E. 2d 30 (1975) and In re Greer, 26 N.C. App. 106, 215 S.E. 2d 404 (1975). Those cases are distinguishable from the case sub judice in that in both Stanback and Greer no question was raised as to service of process. In the case sub judice, the record does not show there was any service of process on the plaintiff in the action filed by the defendant in Durham County. That action was filed on 5 October 1978. No service of process being had and no endorsement for an extension of time or alias or pluries summons being issued, the action was discontinued on 3 January 1979 under G.S. 1A-1, Rule 4(e). The plaintiff on 6 April 1979 filed a motion in the Durham County action praying for a change of venue or that the action, be dismissed. We hold that the filing of this motion did not revive an action that had been discontinued by operation of law. There was not an action pending in Durham County at the time the case sub judice was filed in Harnett County. The judgment of the District Court of Harnett County is proper.

Affirmed.

Judges PARKER and CLARK concur.

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263 S.E.2d 36, 45 N.C. App. 535, 1980 N.C. App. LEXIS 2665, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robertson-v-smith-ncctapp-1980.

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