(1) Forms of Action. There shall be in this State but one form of action for the enforcement or protection of private rights or the redress of private wrongs, which shall be denominated a civil action, and in which there shall be a right to have issues of fact tried before a jury. Every action prosecuted by the people of the State as a party against a person charged with a public offense, for the punishment thereof, shall be termed a criminal action.
(2) Rules of Procedure. The Supreme Court shall have exclusive authority to make rules of procedure and practice for the Appellate Division. The General Assembly may make rules of procedure and practice for the Superior Court and District Court Divisions, and the General Assembly may delegate this authority to the Supreme Court. No rule of procedure or practice shall abridge substantive rights or abrogate or limit the right of trial by jury. If the General Assembly should delegate to the Supreme Court the rule-making power, the General Assembly may, nevertheless, alter, amend, or repeal any rule of procedure or practice adopted by the Supreme Court for the Superior Court or District Court Divisions.
History Note. - The provisions of this section are similar to those to Art. IV, § 11, Const. 1868, as that article was rewritten in 1962.
Legal Periodicals. - For article, "The 1980 Amendments to the Federal Rules of Civil Procedure and Proposals for North Carolina Practice," see 16 Wake Forest L. Rev. 915 (1980).
For article, "Why the North Carolina Court of Appeals Should Have a Procedure for Sitting En Banc," see 75 N.C.L. Rev. 1981 (1997).
For recent development, "The Supreme Court of North Carolina's Rulemaking Authority and the Struggle for Power: State v. Tutt," see 84 N.C. L. Rev. 2100 (2006).
CASE NOTES
I. General Consideration.
II. Civil Actions.
III. Criminal Actions.
IV. Rules of Procedure.
I. GENERAL CONSIDERATION.
Editor's Note. - Some of the cases cited below were decided under former Art. IV, § 11, Const. 1868, as rewritten in 1962, and under corresponding provisions of former Art. IV prior to its 1962 revision.
No procedure or practice of the courts, even those exercised pursuant to their inherent powers, may abridge a person's substantive rights. In re Alamance County Ct. Facilities, 329 N.C. 84, 405 S.E.2d 125 (1991).
Section Compared to N.C. Const., Art. I, § 25. - There is not a conflict between this section and N.C. Const., Art. I, § 25, but this section is more comprehensive. Faircloth v. Beard, 320 N.C. 505, 358 S.E.2d 512 (1987), overruled in part, Jacobs v. City of Asheville, 137 N.C. App. 441, 528 S.E.2d 905 (2000).
N.C. Const., Art. I, § 25 and this section must be read in conjunction with one another. This section merely establishes the form and procedure for the trial of all civil actions, including the procedure of having issues of fact decided by a jury in what were formerly equity proceedings; to determine whether there exists a constitutional right to trial by jury of a particular cause of action, one looks to N.C. Const., Art. I, § 25, which ensures that there is a right to trial by jury where the underlying cause of action existed at the time of adoption of the 1868 Constitution, regardless of whether the action was formerly a proceeding in equity. Kiser v. Kiser, 325 N.C. 502, 385 S.E.2d 487 (1989).
Sovereign Immunity. - The concept of sovereign immunity cannot be waived by indirection or by procedural rule. Orange County v. Heath, 282 N.C. 292, 192 S.E.2d 308 (1972).
Subsection (2) of this section would require a direct and positive declaration of policy, rather than a minute procedural change in G.S. 1A-1, Rule 65, to abolish governmental immunity. Orange County v. Heath, 282 N.C. 292, 192 S.E.2d 308 (1972).
A municipal corporation's governmental immunity against a claim for damages by a party wrongfully restrained or enjoined by the municipal corporation was not abrogated by the enactment of G.S. 1A-1, Rule 65(c), providing that no security for payment of damages for wrongfully obtaining an injunction shall be required of the State or its political subdivisions, but that "damages may be awarded against such party in accord with this rule." Orange County v. Heath, 14 N.C. App. 44, 187 S.E.2d 345, aff'd, 282 N.C. 292, 192 S.E.2d 308 (1972).
Pretrial Discovery Does Not Infringe upon Rights. - Section 1A-1, Rule 26(b), authorizing the pretrial discovery of the existence and contents of insurance, does not subject a defendant's property to unreasonable search and seizure or authorize the taking of a defendant's property without due process of law. Marks v. Thompson, 14 N.C. App. 272, 188 S.E.2d 22, aff'd, 282 N.C. 174, 192 S.E.2d 311 (1972).
For examination of historical development of the right to trial by jury, see Kiser v. Kiser, 325 N.C. 502, 385 S.E.2d 487 (1989).
Right to Request Jury Trial Under § 50-10. - Where the parties' last pleading was filed nearly six months prior to the 1971 amendment of G.S. 50-10, the amendment did not nullify the right to request a jury trial "prior to the call of the action for trial" conferred by G.S. 50-10 at the time defendant filed the last pleading. Branch v. Branch, 282 N.C. 133, 191 S.E.2d 671 (1972).
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).
Setting Particular Venue for Challenges to Redistricting Held Constitutional. - Supreme Court of North Carolina found no constitutional bar under N.C. Const., Art. IV, § 13(2) to the General Assembly's setting venue for redistricting challenges in the county where the capital of North Carolina is located, pursuant to G.S. 1-81.1; the court found that the provision did not affect jurisdiction, but instead, it merely established venue for challenges to redistricting. Stephenson v. Bartlett, 358 N.C. 219, 595 S.E.2d 112 (2004).
Applied in Superior Foods, Inc. v. Harris-Teeter Super Mkts., Inc., 288 N.C. 213, 217 S.E.2d 566 (1975); State v. Bennett, 59 N.C. App. 418, 297 S.E.2d 138 (1982).
Cited in Simmons v. Textile Workers Union, 15 N.C. App. 220, 189 S.E.2d 556 (1972); In re Palmer, 296 N.C. 638, 252 S.E.2d 784 (1979); Duke Power Co. v. Winebarger, 300 N.C. 57, 265 S.E.2d 227 (1980); State v. Evans, 46 N.C. App. 327, 264 S.E.2d 766 (1980); State v. Wise, 64 N.C. App. 108, 306 S.E.2d 569 (1983); State v. Bennett, 308 N.C. 530, 302 S.E.2d 786 (1983); State v. Hudson, 331 N.C. 122, 415 S.E.2d 732 (1992); Shook v. County of Buncombe, 125 N.C. App. 284, 480 S.E.2d 706 (1997); State v. Rorie, 348 N.C. 266, 500 S.E.2d 77 (1998); State v. Sinnott, 163 N.C. App. 268, 593 S.E.2d 439 (2004); Holland v. Heavner, 164 N.C. App. 218, 595 S.E.2d 224 (2004); Hill v. West, 177 N.C. App. 132, 627 S.E.2d 662 (2006).
II. CIVIL ACTIONS.
This section abolished the distinction between actions at law and suits in equity, leaving such rights and remedies to be enforced in the one court, which theretofore had administered simply legal rights. Peebles v. Gay, 115 N.C. 38, 20 S.E. 173 (1894). See Reynolds v. Reynolds, 208 N.C. 578, 182 S.E. 341 (1935).
But Distinction between Principles Is Not Abolished. - Equity is now administered in the same courts as matters of law, but the distinction between equitable and legal principles has not been abolished. Waters v. Garris, 188 N.C. 305, 124 S.E. 334 (1924); Furst & Thomas v. Merritt, 190 N.C. 397, 130 S.E. 40 (1925); Page Trust Co. v. Godwin, 190 N.C. 512, 130 S.E. 323 (1925).
This section, abolishing the distinctions between actions at law and suits in equity, does not imply that the distinctions as between law and equity are abolished. Principles of law and principles and doctrines of equity, remain the same as they have ever been; the change wrought is in the method of administering them and, in some degree, the extent of the application of them. The abolition does not destroy equitable rights and remedies, nor does it merge legal and equitable rights. Scales v. Wachovia Bank & Trust Co., 195 N.C. 772, 143 S.E. 868 (1928).
Inapplicability of Equitable Principle to Contract Action. - This section, providing that legal and equitable remedies be administered in the same court, does not abolish the recognized distinction in the principles applicable to each; and as an action to enforce the provisions of a contract is one at law, the equity that time is not the essence of the contract has no application. Makuen v. Elder, 170 N.C. 510, 87 S.E. 334 (1915).
Superior Courts as Successors of Courts of Equity. - Under this section and former Art. IV, § 20, Const. 1868, the superior courts became the successors of the courts of equity, having their jurisdiction and exercising their equitable powers unless restrained by statute. In re Estate of Smith, 200 N.C. 272, 156 S.E. 494 (1931).
One Action to Determine Legal and Equitable Rights and Remedies. - Legal and equitable rights and remedies are now determined in one and the same action. Woodall v. North Carolina Joint Stock Land Bank, 201 N.C. 428, 160 S.E. 475 (1931).
Animal welfare agency had standing to assert that an injunction and temporary custody order should be entered against the animal owners for the animal owners' alleged neglect and abuse of their animals despite the claim that the animal welfare agency had not suffered a legal injury itself; the North Carolina Constitution abolished the distinction between actions at law and suits in equity, leaving only one court to enforce such rights, and the legislature expressed the intent that the broadest category of persons or organizations be deemed a "real party in interest" when contesting cruelty to animals. Animal Legal Def. Fund v. Woodley, - N.C. App. - , 640 S.E.2d 777 (2007).
Equitable Rights Only Enforceable by Civil Action. - Since the passage of this section the enforcement of an equitable right, as that of subrogation, can only be maintained by a civil action. Calvert v. Peebles, 82 N.C. 334 (1880).
Rights of Prior Lienor Not Affected. - This section does not affect the rights of a prior lienor by a registered chattel mortgage in favor of a judgment creditor who has sold the personal property by execution under a judgment subsequent to the mortgage lien, or give the creditor a right to levy his execution instead of pursuing the equitable remedy. Rowland Hdwe. & Supply Co. v. Lewis, 173 N.C. 290, 92 S.E. 13 (1917).
Right of Defendant to Know Nature of Demand. - The necessity for drawing pleadings in civil actions according to a prescribed or established precedent ceased when the form of suits was abolished by this section. But one who is brought into court to answer a demand for damages or for specific property has the same fundamental right to know the nature of the demand sufficiently well to enable him, with the aid of competent counsel, to prepare his defense as he has to be informed of an accusation for which he might have to answer criminally. Conley v. Richmond & D.R.R., 109 N.C. 692, 14 S.E. 303 (1891).
Effect of Asking for Ancillary Remedy to Which Party Is Not Entitled. - There being but one form of action in civil cases, the fact that a plaintiff asks for one of the many remedies ancillary thereto, to which he is not entitled, does not affect the action itself, which will go on if he is entitled to any other of the remedies. Hargrove v. Harris, 116 N.C. 418, 21 S.E. 916 (1895).
Amendment of Pleadings by Direction of Court. - Where a good cause of action is stated for equitable relief, but is defective in form, the court may require the pleadings to be made definite and certain by amendment, the distinction between suits in equity and actions at law as to jurisdictional matters being abolished by this section. Green v. Harshaw, 187 N.C. 213, 121 S.E. 456 (1924).
Enforcement of Contracts. - The remedy for the enforcement of all kinds of contracts is now a civil action. Boles v. Caudle, 133 N.C. 528, 45 S.E. 835 (1903).
Action for Money Had and Received. - Under this section, an exception to a complaint that by its form it is for money had and received, and that the action cannot be maintained unless the money has been actually received, is untenable. Staton v. Webb, 137 N.C. 35, 49 S.E. 55 (1904).
Action for Claim and Delivery. - There is no such thing as an action for claim and delivery. Under this section there is but one form of action in civil cases. Hargrove v. Harris, 116 N.C. 418, 21 S.E. 916 (1895).
Mandamus. - There is now in this State but one form of action, and the writ of mandamus is but a process of the court in that action. August Belmont & Co. v. Reilly, 71 N.C. 260 (1874).
No Right to Jury Trial in Equitable Distribution Action. - No right to bring an action for equitable distribution of marital property existed prior to the adoption of the equitable distribution statutes, G.S. 50-20 and 50-21, and the language of the statutes themselves create no new right to trial by jury; therefore, there is no right to trial by jury for such an action under the Constitution of North Carolina. Kiser v. Kiser, 325 N.C. 502, 385 S.E.2d 487 (1989).
No Right to Jury Trial in Action Seeking Attorneys' Fees Under Quantum Meruit. - Trial court did not err in denying a law firm's request for a jury trial on the reasonable value of the attorneys who had provided legal services for a client under a contingency fee agreement and who were then discharged by the client under N.C. Const., Art. I, § 25 and N.C. Const., Art. IV, § 13; until adoption of the modern rule, clients had no right to unilaterally discharge an attorney and force him to pursue a quantum meruit claim, and the right to a jury trial under N.C. Const., Art. I, § 25 was guaranteed only in cases in which the right and the remedy were in existence when the North Carolina Constitution of 1868 was adopted. Guess v. Parrott, 160 N.C. App. 325, 585 S.E.2d 464 (2003).
Stockholders' Derivative Actions. - Although stockholders' derivative actions may be equitable actions, they are actions to protect private rights and to redress private wrongs; therefore they are civil actions under this section which guarantees that parties to such actions may have questions of fact tried by juries. Faircloth v. Beard, 320 N.C. 505, 358 S.E.2d 512 (1987), overruled in part, Jacobs v. City of Asheville, 137 N.C. App. 441, 528 S.E.2d 905 (2000).
III. CRIMINAL ACTIONS.
.
"Criminal Action" and "Indictment" Synonymous. - The terms "criminal action" and "indictment," as used in the Constitution and in the General Statutes, are synonymous. Therefore, it would be equally regular to entitle a case upon the records of the court either as "The People v. A.B. - Criminal Action," or "The State v. A.B. - Indictment." State v. Simons, 68 N.C. 378 (1873).
IV. RULES OF PROCEDURE.
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Substantive Rights May Not Be Abridged by Rules. - Regardless of its "procedural" subject matter, no rule of procedure or practice may be applied to abridge substantive rights. Gardner v. Gardner, 300 N.C. 715, 268 S.E.2d 468 (1980).
The rules of the Court of Appeals are mandatory and not directory. State v. Black, 7 N.C. App. 324, 172 S.E.2d 217 (1970).
Authority of General Assembly over Rules in Trial Courts. - The General Assembly has the final word on rules of practice and procedure in the trial courts of the State. State v. Campbell, 14 N.C. App. 596, 188 S.E.2d 558 (1972).
The General Assembly was without authority to enact subdivision (d)(6) of G.S. 15A-1446, which permits appellate review of a contention that defendant was convicted under a statute that violates the United States Constitution or the North Carolina Constitution even though no objection, exception or motion on such ground was made in the trial division, since the statute violates the provisions of subsection (2) of this section giving the Supreme Court the exclusive authority to make rules of practice and procedure for the appellate division. State v. Elam, 302 N.C. 157, 273 S.E.2d 661 (1981); State v. O'Neal, 77 N.C. App. 600, 335 S.E.2d 920 (1985).
Authority of Superior Courts Where Laws for Duties of District Attorneys Unconstitutional. - The superior court is empowered to review the constitutionality of the statutes which prescribe the duties of the district attorney and to fashion an appropriate remedy should such statutes violate the Constitution. Simeon v. Hardin, 339 N.C. 358, 451 S.E.2d 858 (1994).
Adoption of Procedural Rule Did Not Affect Action Already Pending. - Given the unique constitutional and statutory responsibilities of the Supreme Court of North Carolina to promulgate rules of appellate procedure, as well as rules and standards of conduct for the judiciary, the Supreme Court of North Carolina did not exceed its authority in adopting N.C. Code Jud. Conduct, Limitation of Proceedings; however, where a judicial disciplinary action was already pending when N.C. Code Jud. Conduct, Limitation of Proceedings came into effect, the action was not barred. In re Inquiry Concerning a Judge (Brown), 358 N.C. 711, 599 S.E.2d 502 (2004).
Conflict Between G.S. 8C-1-103(a)(2) and N.C. R. App. P. 10(b)(1). - Constitution of North Carolina vests the Supreme Court of North Carolina with exclusive authority to make rules of practice and procedure for the appellate division of the courts; while G.S. 8C-1-103(a)(2) permitted appellate review of an evidentiary ruling even though the party failed to object at trial, since G.S. 8C-1-103(a)(2) was inconsistent with N.C. R. App. P. 10(b)(1), G.S. 8C-1-103(a)(2) failed. State v. Tutt, 171 N.C. App. 518, 615 S.E.2d 688 (2005).
Constitution of North Carolina expressly vested in the Supreme Court of North Carolina the exclusive authority to make rules of procedure and practice for the Appellate Division; although G.S. 8C-1-103(a)(2) was contained in the Rules of Evidence, it was manifestly an attempt to govern the procedure and practice of the Appellate Division as it purported to determine which issues were preserved for appellate review, and to the extent it conflicts with N.C. R. App. P. 10(b)(1), G.S. 8C-1-103(a)(2) failed. State v. Oglesby, 361 N.C. 550, 648 S.E.2d 819 (2007).
Rule-Making Authority. - Rule-making authority was not conferred on the Court of Appeals of North Carolina but belonged exclusively with the North Carolina Supreme Court under N.C. Const., Art. IV, § 13(2); indeed, even the North Carolina General Assembly could not alter or amend the appellate rules. Stann v. Levine, 180 N.C. App. 1, 636 S.E.2d 214 (2006).