10 N.C. App. 519 | N.C. Ct. App. | 1971
The first question to be decided on this appeal is whether Judge Martin had the power and authority to hear plaintiff appellee’s motion for summary judgment while defendant’s motion for change of venue was pending. A very similar factual situation is found in Roberts v. Moore, 185 N.C. 254, 116 S.E. 728. In that case, plaintiff was a foreign corporation and defendants were citizens of Sampson County. Suit was filed in New Hanover County and summons issued. Before time for answering the complaint had expired, defendants moved for a change of venue to Sampson County. A notice of the motion was served on the plaintiff and time for hearing was set for 18 December 1922. On 15 December 1922, a default judgment was entered against the defendants, from which judgment they appealed. The Court held:
“While it is clear from a perusal of section 470 that this question of venue is not in the first instance jurisdictional and may be waived by the parties, and the decisions construing the section so hold, these decisions are also to the effect that where the motion to remove is made in writing and in apt time, the question of removal then becomes a matter of substantial right, and the court of original venue is without power to proceed further in essential matters until the right of removal is considered and passed upon. And any such judgment entered before that should be set aside on motion or appeal as being contrary to the course and practice of the court. Assuredly so, then [sic]*522 th© material facts alleged in support of the motion to remove are practically admitted.”
Another case with similar facts is R. R. v. Thrower, 213 N.C. 637, 197 S.E. 197. There, the plaintiff, a resident of New Hanover, instituted an action in Cumberland County on an unpaid check against the defendant, a resident of Mecklenburg. Defendant filed a motion for change of venue to Mecklenburg, and plaintiff filed a motion to retain the action in Cumberland for the convenience of the witnesses. The court denied defendant’s motion and retained the action in Cumberland pursuant to plaintiff’s motion. On appeal, the Supreme Court quoted the above paragraph from Roberts, and added:
“Upon the admitted facts and the facts found by the court, to which there is no exception, Meckenburg County is the proper venue for the trial of this action. When the defendant duly and in proper time filed his motion in writing for the removal of this cause to Mecklenburg County it then became the duty of the court to pass upon and decide the question thus raised before proceeding further in the cause in any essential matter affecting the rights of the defendant. Pending a determination of this question the court was without authority to entertain the motion made by the plaintiff. On the admitted facts defendant’s motion should have been allowed and an order removing the cause to Mecklenburg County should have been entered. By considering and allowing the plaintiff’s motion in its discretion the court below, in effect, by the exercise of its discretion, denied the defendant a substantial right to which he is entitled as a matter of law.
“The plaintiff, if he so elects, still has the right to file its motion in the Mecklenburg Superior Court and it will then become the duty of the judge presiding to determine whether the cause should be sent back to Cumberland County for the convenience of the witnesses under the second subsection of C.S., 470.”
A recent restatement of the foregoing rule appears in 1 McIntosh, N. C. Practice 2d, § 833, p. 148 (Supp. 1970) :
“When the motion to remove is made in apt form and time, the question of removal then becomes a matter of substantial right; the moving party is thereupon entitled to*523 have the matter ruled upon before the court proceeds further in respect of essential matters; and for the court to do so prior to passing upon the removal motion is error.”
Since Meckenburg was not the proper venue, the order granting summary judgment denied defendant a substantial right to which he was entitled and was contrary to the course and practice of the court; moreover, it appears that it was error for Judge Martin to hear the motion for summary judgment until the motion for change of venue was heard because he was without power and authority to do so.
The next question is whether Judge Exum, sitting in Ire-dell, had authority to set aside the order granting summary judgment by another superior court judge upon defendant’s motion under Rule 60(b) (6) of the North Carolina Rules of Civil Procedure. Rule 60(b) (6) provides:
“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(6) Any other reason justifying relief from the operation of the judgment.”
The rule applicable here is found in 2 Strong, N. C. Index 2d, Courts, § 9, p. 449:
“If a judge of the Superior Court enters an order without legal power to act in respect to the matter, such order is a nullity, and another Superior Court judge may disregard it without offending the rule which precludes one Superior Court judge from reviewing the decision of another.”
We hold that the Iredell Superior Court did have authority to set aside the order entered in Mecklenburg Superior Court because that order was entered without power and authority and was a nullity.
Reversed.
