(1) Supreme Court. The Supreme Court shall have jurisdiction to review upon appeal any decision of the courts below, upon any matter of law or legal inference. The jurisdiction of the Supreme Court over "issues of fact" and "questions of fact" shall be the same exercised by it prior to the adoption of this Article, and the Court may issue any remedial writs necessary to give it general supervision and control over the proceedings of the other courts. The Supreme Court also has jurisdiction to review, when authorized by law, direct appeals from a final order or decision of the North Carolina Utilities Commission.
(2) Court of Appeals. The Court of Appeals shall have such appellate jurisdiction as the General Assembly may prescribe.
(3) Superior Court. Except as otherwise provided by the General Assembly, the Superior Court shall have original general jurisdiction throughout the State. The Clerks of the Superior Court shall have such jurisdiction and powers as the General Assembly shall prescribe by general law uniformly applicable in every county of the State.
(4) District Courts; Magistrates. The General Assembly shall, by general law uniformly applicable in every local court district of the State, prescribe the jurisdiction and powers of the District Courts and Magistrates.
(5) Waiver. The General Assembly may by general law provide that the jurisdictional limits may be waived in civil cases.
(6) Appeals. The General Assembly shall by general law provide a proper system of appeals. Appeals from Magistrates shall be heard de novo, with the right of trial by jury as defined in this Constitution and the laws of this State.
(1981, c. 803, s. 1.)
History Note. - The provisions of this section are similar to those of Art. IV, § 10, Const. 1868, as that article was rewritten in 1962 and as amended in 1965.
Legal Periodicals. - For survey of case law as to direct appeal to State Supreme Court from order or decision of Utilities Commission, see 44 N.C.L. Rev. 890 (1966).
For note analyzing possible constitutional barriers to judicial abrogation of contractual governmental immunity, see 12 Wake Forest L. Rev. 1082 (1976).
For survey of 1979 law on criminal procedure, see 58 N.C.L. Rev. 1404 (1980).
For article, "A Powerless Judiciary? The North Carolina Courts' Perceptions of Review of Administrative Action," see 12 N.C. Cent. L.J. 21 (1980).
For comment, "The Advisory Opinion in North Carolina: 1947 to 1991," see 70 N.C.L. Rev. 1853 (1992).
CASE NOTES
I. General Consideration.
II. Supreme Court.
A. In General.
B. Claims Against State.
I. GENERAL CONSIDERATION.
Editor's Note. - Some of the cases cited below were decided under former Art. IV, § 10, Const. 1868, as rewritten in 1962 and as amended in 1965, and under corresponding provisions of former Art. IV prior to its 1962 revision.
Meaning of Subsection (1). - Subsection (1) of this section, retaining the jurisdiction of the Supreme Court over "issues of fact" and "questions of fact" as it had existed prior to the 1971 revision, has no relation to the court's prior original jurisdiction over claims against the State. Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976).
Subsection (6) of this section refers to a system of appeals from a lower court to a higher court within the General Court of Justice. State ex rel. N.C. Utils. Comm'n v. Old Fort Finishing Plant, 264 N.C. 416, 142 S.E.2d 8 (1965).
When the jurisdiction of a particular court is constitutionally defined, the legislature cannot by statute restrict or enlarge that jurisdiction unless authorized to do so by the Constitution. Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976).
The principle that when the jurisdiction of a particular court is constitutionally defined the legislature cannot by statute restrict or enlarge that jurisdiction unless authorized to do so by the Constitution is grounded on the separation of powers provisions found in many American Constitutions, including the Constitution of this State. Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976).
The superior court has original general jurisdiction throughout the State except as otherwise provided by the General Assembly. State v. Wall, 271 N.C. 675, 157 S.E.2d 363 (1967).
Jurisdiction of District Courts. - The General Assembly is authorized by general law to prescribe the jurisdiction and powers of district courts. State v. Wall, 271 N.C. 675, 157 S.E.2d 363 (1967).
Appeal procedures in G.S. 7A-272(d) prevail over the general rule of G.S. 15A-1347; therefore, after defendant's felony probation was revoked in district court, defendant was allowed to appeal the case to the North Carolina Court of Appeals instead of a superior court. State v. Hooper, 158 N.C. App. 654, 582 S.E.2d 331 (2003).
Where a petition to terminate parental rights was captioned with the names of both children, but the summons that was issued referenced only the younger child, the trial court lacked subject matter jurisdiction to terminate the mother's parental rights in the older child because a summons pertaining to the child was not issued. In re C.T., - N.C. App. - , 643 S.E.2d 23 (2007).
The court of appeals has no jurisdiction to entertain a motion for summary judgment made for the first time on appeal. Britt v. Allen, 12 N.C. App. 399, 183 S.E.2d 303 (1971).
Jurisdiction over Civil and Criminal Appeals from District Court. - The constitutional and statutory structure of our General Court of Justice provides that, generally, appeals from the district court in civil causes go to the Court of Appeals, while appeals from the district court in criminal causes must go first to the superior court. State v. Killian, 25 N.C. App. 224, 212 S.E.2d 419 (1975).
Review of Judicial Disciplinary Proceedings. - Under this section and G.S. 7A-32 the courts of the appellate division have power to review judicial disciplinary proceedings, whether the attorney or the State has prevailed in the trial court. In re Palmer, 296 N.C. 638, 252 S.E.2d 784 (1979).
The State may seek review by the appellate division of proceedings disciplining attorneys under the judicial method. However, the State may not appeal in such cases as a matter of right, but must seek appellate review by petition for writ of certiorari. In re Palmer, 296 N.C. 638, 252 S.E.2d 784 (1979).
Review of Attorney Disciplinary Proceedings. - The Court of Appeals of North Carolina lacked jurisdiction to hear the State Bar of North Carolina's appeal of a grant of summary judgment to an attorney in a disciplinary proceeding because G.S. 84-28(h) provided no appeal from a final order that did not impose discipline, and in the instant case, no discipline had been imposed. N.C. State Bar v. Rudisill, 159 N.C. App. 704, 583 S.E.2d 413 (2003).
Jurisdiction over Eastern Band of Cherokee in Civil Matters. - North Carolina has had civil jurisdiction over the Eastern Band of the Cherokee at least since the emigration west following the Treaty of New Echota, when the Indians remaining in North Carolina became subject to the laws of the State. The fact that these Indians have since been recognized as an Indian tribe and brought under federal supervision did not remove the existing jurisdiction of the State of North Carolina. Sasser v. Beck, 40 N.C. App. 668, 253 S.E.2d 577, cert. denied, 298 N.C. 300, 259 S.E.2d 915 (1979).
The courts of this State have jurisdiction over a member of the Eastern Band of Cherokee Indians in a tort claim by a non-Indian arising from an occurrence on land within the Qualla Boundary. Sasser v. Beck, 40 N.C. App. 668, 253 S.E.2d 577, cert. denied, 298 N.C. 300, 259 S.E.2d 915 (1979).
The subject matter jurisdiction of the clerks of the superior court can only be conferred by statute. In re Locklear, 314 N.C. 412, 334 S.E.2d 46 (1985).
Jurisdiction over a District Court's Revocation of Probation - When a district court revokes a defendant's probation, that defendant's appeal is to the superior court rather than the Court of Appeals of North Carolina; thus, G.S. 15A-1347, rather than G.S. 7A-272(d), governed defendant's appeal of a probation revocation and the court of appeals lacked jurisdiction to hear the appeal. State v. Hooper, 358 N.C. 122, 591 S.E.2d 514 (2004).
Three-Judge Panel for Redistricting Challenges Held Constitutional. - Three-judge panel of superior court judges required by G.S. 1-267.1 is not a new court outside of the contemplation of N.C. Const. art. IV, §§ 12 and 13(2), as a challenge to redistricting is a matter of procedure that lies within the purview of the General Assembly; accordingly, no new courts are created beyond those contemplated by N.C. Const. art. IV, §§ 1, 2. Stephenson v. Bartlett, 358 N.C. 219, 595 S.E.2d 112 (2004).
Applied in City of Charlotte v. McNeely, 281 N.C. 684, 190 S.E.2d 179 (1972); Lawing v. Jaynes, 285 N.C. 418, 206 S.E.2d 162 (1974); In re Thomas, 290 N.C. 410, 226 S.E.2d 371 (1976); In re Greene, 297 N.C. 305, 255 S.E.2d 142 (1979); State v. Freeman, 319 N.C. 609, 356 S.E.2d 765 (1987); State v. Dudley, 319 N.C. 656, 356 S.E.2d 361 (1987); Crist v. Moffatt, 326 N.C. 326, 389 S.E.2d 41 (1990); Travco Hotels, Inc. v. Piedmont Natural Gas Co., 332 N.C. 288, 420 S.E.2d 426 (1992); Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449, 515 S.E.2d 675 (1999), cert. denied, 529 U.S. 1033, 120 S. Ct. 1452, 146 L. Ed. 2d 337 (2000); Shavitz v. City of High Point, 270 F. Supp. 2d 702 (M.D.N.C. 2003); N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C. 649, 599 S.E.2d 888 (2004).
Cited in Austin v. Austin, 12 N.C. App. 286, 183 S.E.2d 420 (1971); Holshouser v. Scott, 335 F. Supp. 928 (M.D.N.C. 1971); State v. Harrell, 279 N.C. 464, 183 S.E.2d 638 (1971); State v. McIntyre, 33 N.C. App. 557, 235 S.E.2d 920 (1977); Waters v. Qualified Personnel, Inc., 294 N.C. 200, 240 S.E.2d 338 (1978); Balcon, Inc. v. Sadler, 36 N.C. App. 322, 244 S.E.2d 164 (1978); Yale v. National Indem. Co., 602 F.2d 642 (4th Cir. 1979); Bailey v. Gooding, 301 N.C. 205, 270 S.E.2d 431 (1980); In re Wharton, 54 N.C. App. 447, 283 S.E.2d 528 (1981); In re Wharton, 305 N.C. 565, 290 S.E.2d 688 (1982); State ex rel. Edmisten v. Tucker, 312 N.C. 326, 323 S.E.2d 294 (1984); L. Harvey & Son Co. v. Harman, 76 N.C. App. 191, 333 S.E.2d 47 (1985); State v. Bolt, 81 N.C. App. 133, 344 S.E.2d 51 (1986); Lea Co. v. North Carolina Bd. of Transp., 317 N.C. 254, 345 S.E.2d 355 (1986); State v. Mitchell, 325 N.C. 539, 385 S.E.2d 324 (1989); In re Doe, 329 N.C. 743, 407 S.E.2d 798 (1991); In re Alamance County Ct. Facilities, 329 N.C. 84, 405 S.E.2d 125 (1991); Republican Party v. Martin, 980 F.2d 943 (4th Cir. 1992), rehearing denied, 991 F.2d 1202 (4th Cir.), cert. denied, 510 U.S. 828, 114 S. Ct. 93, 126 L. Ed. 2d 60 (1993); Bailey v. North Carolina Dep't of Revenue, 353 N.C. 142, 540 S.E.2d 313 (2000); In re Voight, 138 N.C. App. 542, 530 S.E.2d 76 (2000); Norris v. Sattler, 139 N.C. App. 409, 533 S.E.2d 483 (2000); State v. Jones, 161 N.C. App. 60, 588 S.E.2d 5, cert. granted, 357 N.C. 660, 589 S.E.2d 882 (2003); State v. Hunt, 357 N.C. 257, 582 S.E.2d 593 (2003), cert. denied, 539 U.S. 985, 124 S. Ct. 44, 156 L. Ed. 2d 702 (2003); State v. Norris, 360 N.C. 507, 630 S.E.2d 915 (2006).
II. SUPREME COURT.
A. IN GENERAL.
.
The jurisdiction of the Supreme Court is conferred and defined by the Constitution, not by the General Assembly. State ex rel. N.C. Utils. Comm'n v. Old Fort Finishing Plant, 264 N.C. 416, 142 S.E.2d 8 (1965); Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976).
It Relates Solely to Appeals from Lower Courts. - The appellate jurisdiction of the Supreme Court relates solely to appeals from decisions of "the courts below." State ex rel. N.C. Utils. Comm'n v. Old Fort Finishing Plant, 264 N.C. 416, 142 S.E.2d 8 (1965); Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976).
The Supreme Court is an appellate court. Its function, under the Constitution, is to review alleged errors and rulings of the trial court, and unless and until it is shown that a trial court ruled on a particular question, it is not given for the Supreme Court to make specific rulings thereon. Greene v. Spivey, 236 N.C. 435, 73 S.E.2d 488 (1952).
And Does Not Include Direct Appeals from Agencies. - Under this section, the jurisdiction of the Supreme Court is to review, on appeal, decisions "of the courts below." This does not include jurisdiction to review on direct appeal the decisions of administrative agencies. State ex rel. N.C. Utils. Comm'n v. Old Fort Finishing Plant, 264 N.C. 416, 142 S.E.2d 8 (1965); Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976).
The General Assembly has no authority to provide for appeal from decisions of administrative agencies to the Supreme Court without prior appeal to and review by a lower court within the General Court of Justice. Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976).
The Utilities Commission, being an administrative agency and not a part of the General Court of Justice, direct appeals from the Utilities Commission to the Supreme Court are not constitutionally permissible. State ex rel. Utils. Comm'n v. VEPCO, 21 N.C. App. 45, 203 S.E.2d 418, rev'd on other grounds, 285 N.C. 398, 206 S.E.2d 283 (1974).
The Supreme Court is strictly an appellate court, its jurisdiction limited "to review upon appeal any decision of the court below upon any matter of law or legal inference." Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976).
And the General Assembly May Not Expand Its Appellate Jurisdiction. - The General Assembly is without authority to expand the appellate jurisdiction of the Supreme Court beyond the limits set in the Constitution. Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976).
The Supreme Court has supervisory jurisdiction over the lower courts, and will exercise this jurisdiction in order that the case may be tried on the correct theory below and unnecessary delay in the administration of justice be thereby prevented. Greene v. Charlotte Chem. Labs., Inc., 254 N.C. 680, 120 S.E.2d 82 (1961).
The Supreme Court has general supervisory authority over the orders, judgments, and decrees of the superior courts of the State; this is a prerogative which, in a proper case, when necessary to promote the expeditious administration of justice, the Supreme Court will not hesitate to exercise. Park Terrace, Inc. v. Phoenix Indem. Co., 243 N.C. 595, 91 S.E.2d 584 (1956); Brice v. Robertson House Moving, Wrecking & Salvage Co., 249 N.C. 74, 105 S.E.2d 439 (1958); In re Brownlee, 301 N.C. 532, 272 S.E.2d 861 (1981).
The Supreme Court will not hesitate to exercise its rarely used general supervisory authority when necessary to promote the expeditious administration of justice. State v. Stanley, 288 N.C. 19, 215 S.E.2d 589 (1975).
Supreme Court of North Carolina had subject matter jurisdiction to review the orders of the Wake County Superior Court issued in election protests and a declaratory judgment action because N.C. Const. art. IV, § 12 granted the court authority to exercise appellate review of any decision of the courts below. James v. Bartlett, 359 N.C. 260, 607 S.E.2d 638 (2005).
Statute could not have restricted the Supreme Court of North Carolina's constitutional authority under N.C. Const., Art. IV, § 12(1) to exercise jurisdiction to review upon appeal any decision of the courts below, and as such, the Supreme Court of North Carolina did not hesitate to exercise its rarely used general supervisory authority when necessary to promote the expeditious administration of justice, and did so to consider questions that were not properly presented according to its rules; this exercise of supervisory authority was particularly appropriate when prompt and definitive resolution of an issue was necessary to ensure the uniform administration of North Carolina's criminal statutes. State v. Ellis, 361 N.C. 200, 639 S.E.2d 425 (2007).
North Carolina Supreme Court determined that the Court should exercise the Court's constitutional supervisory power, under N.C. Const., Art. IV, § 12(1), in a case in which a department of social services was ordered to pursue termination of a father's parental rights to address the father's challenge to the trial court's jurisdiction, despite the lack of a final order, because (1) the Court was cognizant that a court, which lacked subject matter jurisdiction over a dispute was absolutely without power to render a decision upon it; and (2) there could be questions in the trial courts and intermediate appellate court as to which provisions of Article 4 of the Juvenile Code were jurisdictional in nature. In re A.R.G., 361 N.C. 392, 646 S.E.2d 349 (2007).
Issuance of Remedial Writs to Control Proceedings of Inferior Courts. - The Supreme Court is vested with authority to issue any remedial writ necessary to give it general supervision and control over the proceedings of inferior courts. State v. Cochran, 230 N.C. 523, 53 S.E.2d 663 (1949).
A judge of the superior court has no authority or jurisdiction to issue a writ of mandamus or prohibition to a district court judge. Those remedies are reserved by subdivision (1) of this section to the Supreme Court. In re Redwine, 312 N.C. 482, 322 S.E.2d 769 (1984).
What Matters Are Reviewable in Supreme Court - In General. - On appeal to the Supreme Court, only error as to the law or legal inferences are reviewable upon the record in the case. Merchants Nat'l Bank v. Howard, 188 N.C. 543, 125 S.E. 126 (1924); State v. Neill, 244 N.C. 252, 93 S.E.2d 155 (1956). See also, McKay v. Bullard, 219 N.C. 589, 14 S.E.2d 657 (1941).
The Supreme Court on appeal in a criminal action can review only matters of law or legal inference. State v. Brewer, 202 N.C. 187, 162 S.E. 363 (1932). See also, State v. Anderson, 208 N.C. 771, 182 S.E. 643 (1935).
This section empowers the Supreme Court to review on appeal any decision of the courts below, upon any matter of law or legal inference; and this is to be presented in accordance with the mandatory rules of the Supreme Court. State v. Bittings, 206 N.C. 798, 175 S.E. 299 (1934). See also, State v. Jackson, 211 N.C. 202, 189 S.E. 510 (1937).
Under the provisions of this section, the Supreme Court, on appeal from an issue of devisavit vel non, involved in the trial of a caveat to a will, is confined to a consideration of assignments of error in matters of law and legal inference. In re Will of Brown, 194 N.C. 583, 140 S.E. 192 (1927).
The Supreme Court has authority to review the record on appeal and to grant a new trial or give other appropriate relief for an error of law committed by the trial court. State v. Lampkins, 286 N.C. 497, 212 S.E.2d 106 (1975), cert. denied, 428 U.S. 909, 96 S. Ct. 3220, 49 L. Ed. 2d 1216 (1976).
Same - Evidence and Credibility. - The competency, admissibility and sufficiency of the evidence in a criminal action is for the court, while the weight, effect and credibility is for the jury, and on appeal the Supreme Court can review only matters of law or legal inference. State v. Casey, 201 N.C. 185, 159 S.E. 337 (1931); Debnam v. Rouse, 201 N.C. 459, 160 S.E. 471 (1931); Carter v. Mullinax, 201 N.C. 783, 161 S.E. 486 (1931); Woody Bros. Bakery v. Greensboro Life Ins. Co., 201 N.C. 816, 161 S.E. 554 (1931); State v. Harrell, 203 N.C. 210, 165 S.E. 551 (1932); State v. Whiteside, 204 N.C. 710, 169 S.E. 711 (1933).
The Supreme Court must accept as conclusive the verdict of the jury, so far as the credibility of witnesses is concerned. State v. Lampkins, 286 N.C. 497, 212 S.E.2d 106 (1975), cert. denied, 428 U.S. 909, 96 S. Ct. 3220, 49 L. Ed. 2d 1216 (1976).
The Supreme Court has no authority to grant a new trial or other relief to a defendant convicted of a criminal offense in a trial free from an error of law on grounds that it disagrees with the jury concerning the credibility of a witness for the State. State v. Lampkins, 286 N.C. 497, 212 S.E.2d 106 (1975), cert. denied, 428 U.S. 909, 96 S. Ct. 3220, 49 L. Ed. 2d 1216 (1976).
Advisory Opinions. - The North Carolina Constitution does not authorize the Supreme Court as a Court to issue advisory opinions; and while advisory opinions of individual justices may be persuasive authority for the points of law addressed, they are in no sense binding or obligatory on those points. In re Advisory Opinion, 314 N .C. 679, 335 S.E.2d 890 (1985).
Editor's Note. - The North Carolina Supreme Court declined to issue an advisory opinion as contemplated by Session Laws 1985, c. 746, on the grounds that to issue such an opinion would be to place the Court directly into the stream of the legislative process. In re Advisory Opinion, 314 N.C. 679, 335 S.E.2d 890 (1985).
The North Carolina Supreme Court is not a fact-finding body. State v. Lawson, 310 N.C. 632, 314 S.E.2d 493 (1984), cert. denied, 471 U.S. 1120, 105 S. Ct. 2368, 86 L. Ed. 2d 267 (1985).
When Issues of Fact May Be Reviewed. - The jurisdiction of the Supreme Court over issues of fact, under this section, will be assumed upon two conditions: (1) If the matter is of such an equitable nature as a court of equity under the former system took exclusive cognizance of; (2) If the proofs are written and documentary and in all respects the same as they were when the judge of the court below passed upon them. Worthy v. Shields, 90 N.C. 192 (1884). See also, Keener v. Finger, 70 N.C. 35 (1874).
For case defining "issues of fact," see Battle v. Mayo, 102 N.C. 413, 9 S.E. 384 (1889).
Prohibition of trial of "issues of fact" by the Supreme Court extends to issues of fact as heretofore understood, and does not hinder the Court from trying such questions of fact as may be involved in a consideration of the propriety of continuing or vacating an order for a provisional injunction. Heilig v. Stokes, 63 N.C. 612 (1869).
The Supreme Court cannot consider a paper which, unrelated to the trial, purports upon its face to have raised an issue of fact after the adjournment as to the recitals set forth in the commission given the presiding judge. State v. Graham, 194 N.C. 459, 140 S.E. 26 (1927).
"Findings" Contemplated Under G.S. 15A-2000(d)(2) in Review of Death Sentences. - While G.S. 15A-2000(d)(2) uses the word "finding" in prescribing the Supreme Court's review of death sentences, a "finding of fact," as that term is generally understood, is not contemplated. Rather, "a finding," as used in that section means a "determination" or a "conclusion." State v. Lawson, 310 N.C. 632, 314 S.E.2d 493 (1984).
Section 15A-2000(d)(2) requires the Supreme Court to determine, as a matter of law, whether (1) the record supports the jury's finding of any aggravating circumstance upon which the trial court based its sentence of death, (2) the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor, or (3) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases. The statute neither contemplates nor requires the court to make factual findings. State v. Lawson, 310 N.C. 632, 314 S.E.2d 493 (1984).
Section 15A-2000(d) is not unconstitutional as an impermissible expansion of the Supreme Court's jurisdiction. State v. Williams, 304 N.C. 394, 284 S.E.2d 437 (1981).
Determination of Sufficiency of Amended Complaint. - The Supreme Court, in the exercise of its supervisory jurisdiction, could determine the sufficiency of an amended complaint, including matters stricken therefrom in the lower court, as though a demurrer ore tenus to the amended complaint in its entirety had been lodged in the Supreme Court, and its ruling that a pleading, thus considered, was insufficient to state a cause of action necessarily included an affirmance of the order of the lower court sustaining the demurrer ore tenus to the amended complaint exclusive of the portions previously stricken out. Philbrook v. Chapel Hill Hous. Auth., 269 N.C. 598, 153 S.E.2d 153 (1967).
Determination of Matter Where Appeal Is Premature. - Where an order of the superior court is interlocutory, and an appeal therefrom to the Supreme Court is premature and is subject to dismissal, the Supreme Court in the exercise of its supervisory jurisdiction may nevertheless, in proper instances, determine the matter in order to obviate a wholly unnecessary and circuitous course of procedure. Edwards v. City of Raleigh, 240 N.C. 137, 81 S.E.2d 273 (1954); Kelly v. Piper, 243 N.C. 54, 89 S.E.2d 764 (1955).
Consideration of Questions Not Properly Presented. - Where the lower court holds the statute attacked by defendant to be unconstitutional, the Supreme Court, in the exercise of its supervisory jurisdiction over the inferior courts, may consider the constitutional questions, notwithstanding that defendant failed properly to present them in the lower court, but even so the Supreme Court will ordinarily consider only the specific constitutional questions discussed in the brief. Rice v. Rigsby, 259 N.C. 506, 131 S.E.2d 469 (1963).
In the exercise of the constitutional power vested in the Supreme Court to issue any remedial writs necessary to give it a general supervision and control over the proceedings of the inferior courts, the Court would overlook defendant's failure to designate the specific constitutional provisions that he contended 1955 Session Laws, c. 358, violated, and consider the question, even though the procedure prescribed by the rules of practice as necessary to present such question was not followed. Rice v. Rigsby, 259 N.C. 506, 131 S.E.2d 469 (1963).
Ordinarily, the Supreme Court will not consider questions not properly presented by objections duly made, exceptions duly entered, and assignments of error properly set out, though it may do so in exceptional circumstances in the exercise of its supervisory and controlling jurisdiction over the proceedings of the other courts vested in it by this section. State v. Hewett, 270 N.C. 348, 154 S.E.2d 476 (1967).
The Supreme Court, in the exercise of its supervisory jurisdiction, may decide questions on the merits, even though the procedure prescribed by the rules of practice as necessary to present such questions has not been followed. Eastern Steel Prods. Corp. v. Chestnutt, 252 N.C. 269, 113 S.E.2d 587 (1960).
Under unusual and exceptional circumstances the court will exercise power under this section to consider questions which are not properly presented according to the rules. State v. Stanley, 288 N.C. 19, 215 S.E.2d 589 (1975).
Correction of Error in Judgment In Rem Where Appeal Is Subject to Dismissal. - Even though an appeal may be subject to dismissal, if the proceeding is in rem and the judgment entered in the court below vitally affects the title to real property, the Supreme Court will take jurisdiction for the purpose of correcting an error in the judgment. This can be done in the exercise of its supervisory power. Ange v. Ange, 235 N.C. 506, 71 S.E.2d 19 (1952); Edwards v. Butler, 244 N.C. 205, 92 S.E.2d 922 (1956).
Review of Habeas Corpus Proceedings. - No appeal to the Supreme Court lies upon the refusal of the judge, having jurisdiction, to release the petitioner in habeas corpus proceedings, except in cases concerning the care and custody of children, the remedy being by application for the writ of certiorari which lies in the discretion of the appellate court. State v. Yates, 183 N.C. 753, 111 S.E. 337 (1922); State v. Hooker, 183 N.C. 763, 111 S.E. 351 (1922); In re Blake, 184 N.C. 278, 114 S.E. 294 (1922).
A decree in habeas corpus proceedings to determine the custody of a child as between its divorced parents is not appealable, the sole remedy being by certiorari to invoke the constitutional power of the Supreme Court to supervise and control proceedings of inferior courts. In re Ogden, 211 N.C. 100, 189 S.E. 119 (1937).
Although petitioner's purported appeal from a judgment rendered on return to a writ of habeas corpus would ordinarily have been dismissed, it would be treated as a petition for writ of certiorari by the Supreme Court in order that an important question presented by the record might be clarified. In re Renfrow, 247 N.C. 55, 100 S.E.2d 315 (1957).
Certiorari. - The Supreme Court has the power to issue any remedial writ necessary to give it general supervision and control over proceedings of the lower courts, and to this end would grant certiorari to review an order of the superior court ordering the State to pay attorney's fees for representation of an indigent defendant in the federal courts, which involved a question of public importance. State v. Davis, 270 N.C. 1, 153 S.E.2d 749, cert. denied, 389 U.S. 828, 88 S. Ct. 87, 19 L. Ed. 2d 84 (1967).
Where an application for writ of certiorari in the nature of a writ of error is made for the purpose of bringing up an appeal when the right of appeal is lost in the trial court by failure to file statement of case on appeal within the time allowed, applicant must negative laches and show merit. State v. Moore, 210 N.C. 686, 188 S.E. 421 (1936).
Writ of Error Coram Nobis. - There is no justification for a rule that would require a person who is not in prison to obtain permission from an appellate court in order to file a petition for a writ of error coram nobis to attack collaterally a final judgment of a trial court from which no appeal was taken. Dantzic v. State, 279 N.C. 212, 182 S.E.2d 563 (1971), overruling In re Taylor, 230 N.C. 566, 53 S.E.2d 857 (1949); State v. Daniels, 231 N.C. 509, 57 S.E.2d 653, cert. denied, 339 U.S. 954, 70 S. Ct. 837, 94 L. Ed. 1366 (1950), and State v. Green, 277 N.C. 188, 176 S.E.2d 756 (1970).
Remand for Further Consideration. - Where an order of the superior court made no ruling on exceptions to an order of the Public Utilities Commission, but remanded the cause to the Commission for a determination, after further proceedings, of the precise question it had theretofore considered and decided, without specifying the ground on which the court's order was based, the Supreme Court, under the circumstances, in the exercise of its power under this section to issue any remedial writs necessary to give it a general supervision and control over the proceedings of the inferior courts, would vacate the court's order and remand the cause to the superior court for consideration and decision of the questions raised by protestants' exceptions to the Commission's findings and order. State ex rel. Utils. Comm'n v. Maybelle Transp. Co., 252 N.C. 776, 114 S.E.2d 768 (1960).
Case in which the State had no right of appeal would be dismissed where the case was not one in which the alleged error appeared on the face of the record proper, which might have been corrected in the Supreme Court's supervisory power under this section, but was to review a ruling of the court entered on motion after trial, as well as an application for certiorari. State v. Todd, 224 N.C. 776, 32 S.E.2d 313 (1944).
Adherence to Theory of Trial in Lower Court. - The principle that an appeal will be determined in accordance with the theory of trial in the lower court is enforced by the Supreme Court because of its limited jurisdiction as an appellate court under this section. Apostle v. Acacia Mut. Life Ins. Co., 208 N.C. 95, 179 S.E. 444 (1935). See also, Ammons v. Fisher, 208 N.C. 712, 182 S.E. 479 (1935).
Enforcement of Opinion and Mandate. - When it comes to the attention of the Supreme Court that a lower court has failed to comply with the opinion of the Supreme Court, whether through insubordination, misinterpretation or inattention, the Supreme Court will, in the exercise of its supervisory jurisdiction, ex mero motu if necessary, enforce its opinion and mandate in accordance with the requirements of justice. Collins v. Simms, 257 N.C. 1, 125 S.E.2d 298 (1962).
B. CLAIMS AGAINST STATE.
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The Constitution no longer gives the Supreme Court original jurisdiction over claims against the State. Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976).
And the General Assembly May Not Confer Such Jurisdiction. - The Supreme Court has no original jurisdiction over claims against the State, and the General Assembly has no authority to confer such jurisdiction upon it. Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976).
The Supreme Court's jurisdiction over claims against the State is the same as over all other claims. Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976).
Trial Court Must Adjudicate Claims Against State. - The appropriate trial court of the General Court of Justice now has original jurisdiction to adjudicate claims against the State. Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976).
Repeal and Unconstitutionality of G.S. 7A-25. - Section 7A-25 was rendered null and void when the electorate approved revised N.C. Const., Art. IV, which deleted the provision granting the Supreme Court original jurisdiction of claims against the State. Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976).
Even if the General Assembly did not intend to repeal G.S. 7A-25, providing for original jurisdiction of claims against the State in the Supreme Court, by ratification of the 1971 revision of N.C. Const., Art. IV, § 7A-25 is unconstitutional. Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976).
As to the original jurisdiction formerly conferred upon the Supreme Court over claims against the State, see Bledsoe v. State, 64 N.C. 392 (1870); Sinclair, Owens & Brown v. State, 69 N.C. 47 (1873); Clements v. State, 76 N.C. 199 (1877); Horne v. State, 82 N.C. 382 (1880); Bain v. State, 86 N.C. 49 (1882); Baltzer v. State, 104 N.C. 265, 10 S.E. 153 (1889); Burton v. Furman, 115 N.C. 166, 20 S.E. 443 (1894); Cowles v. State, 115 N.C. 173, 20 S.E. 384 (1894); Miller v. State, 134 N.C. 270, 46 S.E. 514 (1904); Carpenter v. Atlanta & C. Air Line Ry., 184 N.C. 400, 114 S.E. 693 (1922); Calkins Dredging Co. v. State, 191 N.C. 243, 131 S.E. 665 (1926); Lacy v. State, 195 N.C. 284, 141 S.E. 886 (1928); Rotan v. State, 195 N.C. 291, 141 S.E. 733 (1928); Warren v. State, 199 N.C. 211, 153 S.E. 864 (1930); Cohoon v. State, 201 N.C. 312, 160 S.E. 183 (1931); Dalton v. State Hwy. & Pub. Works Comm'n, 223 N.C. 406, 27 S.E.2d 1 (1943); Sale v. State Hwy. & Pub. Works Comm'n, 242 N.C. 612, 89 S.E.2d 290 (1955).
Opinions of Attorney General
Authority of Magistrate to Hear Summary Judgment Action Involving Residential Rental Property. - A magistrate does not have the authority to hear a summary ejectment action involving residential rental property in another county if the landlord and the tenant so provide in the lease. See opinion of Attorney General to Hon. James E. Lanning, Chief District Court Judge, 26th Judicial District, 60 N.C.A.G. 26 (1990).
No Continued Residence Requirements. - Continued residence in the county for which a magistrate is appointed is not a prerequisite to remain in the office of magistrate for the term of the appointment. See opinion of Attorney General to Mr. David A. Phillips, Attorney at Law, 1997 N.C.A.G. 61 (10/8/97).