
    FRANCIS HALL et al. v. SETTLE ARTIS et al.
    (Filed 26 September, 1923.)
    1. Clerks of Court — Jurisdiction—Appeal.
    If an action or proceeding is instituted before tbe clerk of wbicb be bas no jurisdiction, and on any ground is sent to tbe Superior Court before tbe judge, tbe judge bas jurisdiction to retain and bear tbe cause as if originally instituted in tbe Superior Court. C. S., see. 637.
    2. Same — Actions—Motions in the Cause.
    Where a suit is brought before tbe clerk for partition of lands, involving tbe establishing of a parol trust in favor of one of tbe tenants against tbe other, which is resisted upon tbe ground that tbe trust bad been later discharged by tbe receipts of rents and profits from tbe land, an independent equitable action, and not a motion in tbe original cause, is tbe defendant’s remedy after a final judgment bad therein been rendered.
    Clabk, C. J., concurring.
    Civil actioN, beard by Grady, J., at February Term, 1923, of GrREENE.
    Tbe plaintiffs instituted a proceeding before tbe clerk for tbe ultimate purpose of selling for partition tbe land described in tbe complaint, and as preliminary thereto of setting up a parol trust in tbe land. When tbe complaint and answer were filed — tbe defendants having pleaded sole seizin — tbe clerk transferred tbe cause to tbe civil-issue docket for trial. In tbe Superior Court tbe defendants moved for judgment of nonsuit on tbe ground that tbe alleged cause of action is cognizable only in a court of equity, and that tbe clerk bad no jurisdiction. Tbe motion was allowed, and tbe plaintiffs excepted and appealed.
    
      George M. Lindsay for plaintiffs.
    
    
      J. Paul Frizzelle for defendants.
    
   Adams, J.

Tbe plaintiffs alleged that tbe land described in tbe complaint was devised by Daniel Artis to Henry Artis and charged with tbe payment of one-fourtb tbe amount of a pecuniary legacy bequeathed by tbe testator to Clara Edwards; that in due time tbe legatee brought suit to subject tbe land to tbe payment of this charge, and obtained an order of sale; that tbe defendant Settle Artis bought tbe property under an agreement that be should bold it in trust for Henry Artis and bis children-until repaid tbe purchase money, and that tbe full amount of tbe purchase price had been repaid him from tbe annual rents. Tbe object of tbe action is to establish a parol trust and to have tbe land sold for partition among tbe plaintiffs and tbe defendants as tenants in common.

The' defendants- contend that the clerk had no jurisdiction of an action or proceeding instituted to establish a parol trust; that the jurisdiction of the Superior Court was entirely derivative, and that the judgment dismissing the action should therefore be affirmed. On the other hand, the plaintiffs insist that the judgment is not erroneous even if it be granted that the clerk was without jurisdiction.

There is a general rule, frequently approved in our decisions, that if an inferior court or tribunal has no jurisdiction of a cause, an appeal from its decision confers no jurisdiction upon the appellate court. 3 C. J., 366, sec. 123; Gordon v. Sanderson, 83 N. C., 1; Boyett v. Vaughan, 85 N. C., 364; Raisin v. Thomas, 88 N. C., 148; Markham v. Hicks, 90 N. C., 1; Robeson v. Hodges, 105 N. C., 49; Cheese Co. v. Pipkin, 155 N. C., 395; McLaurin v. McIntyre, 167 N. C., 350; Holmes v. Bullock, 178 N. C., 376; Commissioners v. Sparks, 179 N. C., 581; Sewing Machine Co. v. Burger, 181 N. C., 241.

But the application of this rule is not unlimited. In Robeson v. Hodges, supra, it is said: “In Capps v. Capps, 85 N. C., 408, it is held that when a case which is properly cognizable in the Superior Court, but erroneously brought before the clerk, gets into the Superior Court, by appeal or otherwise, the latter court will amend the summons and treat the action as if originally brought in the Superior Court, and proceed; but when the action is properly triable in the Probate Court, it is error in the Superior Court, on appeal, to allow the complaint to be amended by engrafting new matter, cognizable only in the Superior Court at term”; and in Elliot v. Tyson, 117 N. C., 114, Clark, J., stated that such amendment of process may be presumed. • To the same effect are McLean v. Breece, 113 N. C., 391; Baker v. Carter, 127 N. C., 92; Ewbank v. Turner, 134 N. C., 77; Ryder v. Oates, 173 N. C., 569. Referring to the question, in Anderson’s case, 132 N. C., 244, Montgomery, J., 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. Roseman v. Roseman, 127 N. C., 494; Ledbetter v. Pinner, 120 N. C., 455; Faison v. Williams, 121 N. C., 152.” See, also, C. S., sec. 637.

The defendants further contend that the plaintiffs should have sought relief by motion in the original cause, and not by an independent action. We do not consider the question whether the Superior Court had the legal right to treat the proceeding as a motion, because, as we understand the record, a final judgment had been rendered in the original cause, and the plaintiffs’ right to insist upon the execution of the parol trust arose after the purchaser had been reimbursed the amount of his expenditure. Under these circumstances, the plaintiffs could resort to an independent equitable action. Smith v. Fort, 105 N. C., 446; McLaurin v. McLaurin, 106 N. C., 331; Bunker v. Bunker, 140 N. C., 18.

We are of opinion tbat tbe Superior Court bad jurisdiction, and tbat tbe judgment dismissing tbe action should be set aside. Tbe judgment is therefore

Eeversed.

Clare, C. J\,

concurring: C. S., 637, provides: ‘‘Whenever a civil action or special proceeding begun before tbe clerk of a Superior Court is for any ground whatever sent to tbe Superior Court before tbe judge, tbe judge has jurisdiction; and it is bis duty, upon tbe request of either party, to proceed to bear and determine all matters in controversy in such action, unless it appears to him tbat justice would be more cheaply and speedily administered by sending tbe action back to be proceeded in before tbe clerk, in which ease be may do so.”

This statute was passed in 1887 (chapter 276). As stated in Roseman v. Roseman, 127 N. C., 497, its enactment was caused by tbe inconveniences resulting from tbe course of practice prescribed in Brittain v. Mull, 91 N. C., 498. Tbe office of probate judge having been abolished, tbe duties thereof devolved upon tbe clerk of tbe Superior Court, and be bad, therefore, two sets of judicial powers — one in tbe exercise of the special judicial powers of bis distinct tribunal, and tbe other which be exercised for tbe court as its clerk, with tbe result tbat there was “oft confusion worse confounded.” This act, now C. S., 637, was passed to simplify tbe procedure. It was much needed and has worked effectively.

Roseman v. Roseman, supra, has been very often cited and is now tbe settled practice. See citations to C. S., 637, which bold tbat “Under this section tbe judge to whom a cause is sent by appeal, or otherwise, from tbe clerk, has the full jurisdiction to bear and fully determine tbe cause, or to make orders thereon and send it back to tbe clerk to be proceeded with by him.” Under this statute and tbe decisions construing it, when tbe appeal reaches tbe Superior Court, “on any ground whatever,” tbe judge has tbe right, under tbe statute, to assume jurisdiction and to dispose of tbe case as if it bad originally begun there.

It should be noted tbat tbe decision which formerly held tbat as to a certain class of cases a clerk bad no jurisdiction because be bad no equitable powers, was the survival of outworn ideas and without any foundation in tbe Constitution.

Tbe Constitution, it will be noted, absolutely abolished “all distinctions between actions at law and suits in equity and tbe forms of all such actions and forms.” No jurisdiction of any court or cause is now based upon tbe presence or administration of equitable ingredients.

Therefore, when a case goes up from the clerk to the judge, there is no distinction of jurisdiction based upon the ground of an action being equitable or otherwise, and when the case reaches the judge he is vested with full jurisdiction to retain the cause and proceed with it, or to make appropriate orders and remand it to the clerk to be proceeded with, and ■of this the judge of the Superior Court is the sole judge. His discretion in this respect cannot be reviewed by this Couyt on appeal.

The cases to the above effect are fully cited in the opinion-in-chief in this case, and others still are cited in the notes to C. S., 637, and other ■cases have been decided since the annotations in the C. S.

Indeed, there is nothing which deprives even a justice of the peace of the right to pass upon equitable matters when within the amount allotted for his jurisdiction. It is true that a justice of the peace cannot issue an injunction or mandamus, or take action in some other matters, but this is not because the Legislature cannot confer jurisdiction in those matters, but because in allotting the distribution “of that portion of the judicial power and jurisdiction which does not pertain to the Supreme Court among the courts inferior to the Supreme Court,” the Legislature has not conferred upon justices of the peace jurisdiction of injunctions, mandamus and other remedies. Const., Art. IY, sec. 12.  