Courts; Clerks of Court Jurisdiction

Subject:

Courts; Clerks of Court Jurisdiction

Requested By:

Honorable R. Max Blackburn Clerk of Superior Court Mecklenburg County

Question:

Where an appeal is taken to the Superior Court from a Clerk’s interim ruling on fees awarded to the Commissioners in a partition proceeding, can the Superior Court retain jurisdiction until final disposition or does the proceeding return to the Clerk of Superior Court?

Conclusion:

The Superior Court may retain jurisdiction and dispose of the full matter under G.S. 1-276.

A proceeding for the partition of real or personal property is a special proceeding over which the clerk has jurisdiction. G.S. 46-1; Dubose v. Harpe, 239 N.C. 672, 80 S.E. 2d 454 (1954).

G.S. 1-276 provides that:

Whenever a civil action or special proceeding begun before the clerk of a superior court is for any ground whatever sent to the superior court before the judge, the judge has jurisdiction; and it is his duty, upon request of either party, to proceed to hear and determine all matters in controversy in such action, unless it appears to him that justice would be more cheaply and speedily administered by sending the action back to be proceeded in before the clerk, in which case he may do so. (Emphasis added).

Thus, when a party appeals from the Clerk’s order, the Superior Court is not limited to review the action of the clerk, but is vested with jurisdiction to "hear and determine all matters in controversy in such action," Allen v. Allen, 258 N.C. 305, 128 S.E. 2d 385 (1962); Hudson v. Fox, 257 N.C. 789, 127 S.E. 2d 556 (1962); Plemmons v. Cutshall, 230 N.C. 595, 55 S.E. 2d 74 (1949); Faison v. Williams, 121 N.C. 152, 28 S.E. 188 (1897), or the Superior Court may remand it to the clerk, but the decision to do so is fully in the Court’s discretion. Hall v. Artis, 186 N.C. 105, 118 S.E. 901 (1923).

The jurisdiction of the Superior Court is not derivative in partition proceedings originally before the clerk. Unlike probate matters where the clerk has exclusive original jurisdiction and the Superior Court has only appellate jurisdiction, In re Estate of Adamee, 291 N.C. 386, 230 S.E. 2d 541, reversing, 28 N.C. App. 229, 221 S.E. 2d 370 (1976), in partition proceedings the clerk is "but part of the same court." Perry v. Bassenger, 219 N.C. 838, 15 S.E. 2d 365 (1941). Thus

G.S. 1-276 applies. Compare, Re Hine’s Will, 228 N.C. 405, 45 S.E. 2d 526 (1947) (probate matter).

Rufus L. Edmisten
Attorney General

Lucien Capone, III
Associate Attorney