Cox v. Cox
98 S.E.2d 879
N.C.
1957
Check Treatment
JOHNSON, J.

When a divorce action is instituted, jurisdiction over the custody of the children born of the marriage vests exclusively in the court before whom the divorce action is pending and becomes a concomitant part of the subject matter of the court’s jurisdiction in the divorce action. G.S. 50-13. Reece v. Reece, 231 N.C. 321, 56 S.E. 2d 641; Robbins v. Robbins, 229 N.C. 430, 50 S.E. 2d 183; Winfield v. Winfield, 228 N.C. 256, 45 S.E. 2d 259; Story v. Story, 221 N.C. 114, 19 S.E. 2d 136.

Therefore, when the plaintiff wife instituted the instant action for divorce, the court became vested in this action with exclusive jurisdiction to enter orders respecting the care and custody of the infant child. This phase of the court’s jurisdiction was properly activated when the defendant filed his petition in the divorce cause praying the court for a determination of his custodial rights with respect to the child. Reece v. Reece, supra.

The defendant in petitioning for the custody of the child was seeking affirmative relief of a substantial nature. This being so, was it within the power of the clerk to divest the Superior Court of its jurisdiction by allowing the plaintiff to submit to a voluntary nonsuit during the course of the hearings and while the issue of custody was in fieri before the presiding judge? We think not.

*531 In McIntosh, North Carolina Practice and Procedure, Second Edition, Section 1645, the principle applied in numerous authoritative decisions of this Court is well stated as follows:

“While the plaintiff may generally elect to enter a nonsuit, ‘to pay the costs and walk out of court,’ in any case in which only his cause of action is to be determined, although it might be an advantage to the defendant to have the action proceed and have the controversy finally settled, he is not allowed to do so when the defendant has set up some ground f'or affirmative relief or some right or advantage of the defendant has supervened, which he has the right to have settled and concluded in the action.”

See also: Bolich v. Ins. Co., 206 N.C. 144, 173 S.E. 320; Gatewood v. Leak, 99 N.C. 363, 6 S.E. 706; Bynum v. Powe, 97 N.C. 374, 2 S.E. 170. We are constrained to the view that the defendant was entitled as a matter of right to have his claim for affirmative relief settled and concluded in this action. The court below correctly so ruled in its order of 28 November, 1956. The plaintiff’s exception thereto is without merit.

We have not overlooked the decision in Caldwell v. Caldwell, 189 N.C. 805, 128 S.E. 329, which may well have been interpreted by the plaintiff’s counsel and by the clerk as authorizing the nonsuit. However, our study of the decision leaves the impression it is factually distinguishable and does not control the instant case.

The next question for decision is whether Judge Seawell’s order vacating the clerk’s judgment of nonsuit was immediately appealable. Not every order or judgment of the Superior Court is immediately appealable to the Supreme Court. The statute, G.S. 1-277, regulates the practice in respect to when an order or decree is subject to immediate review. This statute as construed and applied by numerous decisions of the Court is well analyzed and explained in detail by Ervin, J., in Veazey v. Durham, 231 N.C. 357, 57 S.E. 2d 377. It would serve no useful purpose to restate here the various propositions there elucidated. For the purpose of this hearing it is enough to say that as a general rule “orders and judgments which are not final in their nature, but leave something more to be done with the case, are not immediately reviewable. The remedy is to note an exception at the time, to be considered on appeal from final judgment.” McIntosh, North Carolina Practice and Procedure, Second Edition, Section 1782(3).

Numerous authoritative decisions of this Court hold that a refusal of a motion to dismiss is not a final determination within the meaning of the statute and is not subject to appeal. Johnson v. Pilot Life Ins. Co., 215 N.C. 120, 1 S.E. 2d 381; Clements v. Southern Ry., 179 N.C. *532 225, 102 S.E. 399; Plemmons v. Southern Improvement Co., 108 N.C. 614, 13 S.E. 188.

The ruling from which the plaintiff attempted to appeal was the same in legal effect as if the plaintiff’s motion for dismissal as of voluntary nonsuit had been made in the first instance before Judge Seawell and by him refused. We conclude, therefore, that the Judge’s order reversing the clerk’s nonsuit was not appealable. The attempted appeal was a nullity, notwithstanding the Judge signed the appeal entries appearing of record. Veazey v. Durham, supra.

The decision in Bailey v. McPherson, 233 N.C. 231, 63 S.E. 2d 559, and the other cases cited by the plaintiff, wherein the lower court became functus officio pending appeal, are factually distinguishable. Here, then,'there was no interruption in the court’s jurisdiction to hear and determine the question of custody. The hearing was concluded and judgment was entered 13 December, 1956. The only exceptions brought up for review are the exceptions to the order dated 28 November, 1956, and the judgment of 13 December, 1956. These present only questions whether the facts found support the decrees and whether error of law appears upon the face of the record. Goldsboro v. R. R., ante, p. 101; Weddle v. Weddle, ante, p. 336. The findings of fact made by the coürt below support the decrees and no error appears on the face of the record. Both decrees will be upheld.

Affirmed.