Anderson v. Atkinson
69 S.E.2d 603
N.C.
1952
Check Treatment
DeNNY, J.

The defendants’ exceptions and assignments of error challenge the authority of the court below to allow an amendment to a complaint in an action in which the court has no jurisdiction of the subject matter of the original action. The exceptions are well taken and will be sustained.

In the former opinion (reported in 234 N.C. 271, 66 S.E. 2d 886), Ervin, J., speaking for the Court, said: “The complaint discloses upon its face that the court has no jurisdiction of the subject matter of the action; for under the law of North Carolina the issue of whether an unprobated script is, or is not, a man’s last will cannot be properly brought before the Superior Court for determination in an ordinary civil action. Brissie v. Craig, 232 N.C. 701, 62 S.E. 2d 330.”

'Whenever it appears upon the face of the complaint that the court has no jurisdiction of the subject matter of the action, the action should be dismissed. Burroughs v. McNeill, 22 N.C. 297; Branch v. Houston, 44 N.C. 85; Henderson County v. Smyth, 216 N.C. 421, 5 S.E. 2d 136.

A defect in jurisdiction over the subject matter cannot be cured by waiver, consent, amendment, or otherwise. G.S. 1-134; Burroughs v. McNeill, supra; Garrett v. Trotter, 65 N.C. 430; Mastin v. Marlow, 65 N.C. 695; Tucker v. Baker, 86 N.C. 1; Hunter v. Yarborough, 92 N.C. 68. “An amendment presupposes jurisdiction of the case.” Hodge v. Williams, 22 How. 87, 16 L. Ed. 237. “There can be no waiver of jurisdiction over the subject matter, and objection may be made at any time during the progress of the action.” McCune v. Manufacturing Co., 217 N.C. 351, 8 S.E. 2d 219; Miller v. Roberts, 212 N.C. 126, 193 S.E. 286; Raleigh v. Hatcher, 220 N.C. 613, 18 S.E. 2d 207.

Furthermore, if we were not confronted with the question of jurisdiction on this appeal, the plaintiffs would not be entitled to maintain their present alleged cause of action. The right to amend pleadings does not permit the litigant to set up a wholly different cause of action or change substantially the form of the action originally sued upon. G.S. 1-163; Perkins v. Langdon, 233 N.C. 240, 63 S.E. 2d 565; Bank v. Sturgill, 223 *302 N.C. 825, 28 S.E. 2d 511; Goodwin v. Fertilizer Works, 123 N.C. 162, 31 S.E. 373.

However, since the Superior Court had no jurisdiction of the subject matter of this action at the time it was originally instituted, the orders entered below, to which the defendants excepted, are vacated and the action is dismissed. Brissie v. Craig, supra.

Appeal dismissed.