#### A. D. WARD et al. v. DORA AGRILLO.

(Filed 5 October, 1927.)

1. Judgments — Clerks of Court — Pleadings—Default and Inquiry — Appeal and Error — Resident Judge — Jurisdiction—Statutes.

Tbe power of tbe resident judge to bear appeals from tbe Superior Court clerk of tbe county of bis residence must rest alone by statute, and be is without statutory authority to entertain sucb appeals involving tbe question as to whether tbe plaintiff in an action to recover for services rendered tbe defendant is entitled to a judgment by default and inquiry for tbe want of an answer. 3 C. S., 593; Const, of N. C., Art. IV, see. 11.

2. Clerks of Court — Pleadings—Judgments—Default and Inquiry — Jurisdiction.

The clerks of tbe Superior Court have jurisdiction to bear and determine motions for judgment by default, etc., for the want of answer to the complaint filed in an action properly brought in their respective counties.

Appeal by defendant from judgment of *Nunn, J.,*resident judge of Fifth Judicial District, at Chambers.

Appeal dismissed.

*Guión <& Guión, D. L. Ward and Whitehurst & Bardin for plaintiffs.*

*Shaw & J ones for defendant.*

CoNNOR, J.,

Plaintiffs in this action demand judgment tbat they recover of defendant for professional services rendered, and expenses incurred by them, as attorneys and counsellors at law, in defendant’s behalf and at her request.

*322Tbe summons, dated 31 March, 1927, and returnable in tbe Superior Court of Craven County on 15 April, 1927, was personally served on 1 April, 1927. On tbe return day plaintiffs filed tbeir duly verified complaint. No answer bas been filed thereto by defendant. She filed a motion before tbe clerk of tbe Superior Court for tbe removal of tbe action to tbe District Court of tbe United States for trial. Tbe motion was denied by tbe clerk on 5 May, 1927. • Defendant’s appeal from tbe order of tbe clerk, denying her motion for removal, was beard by tbe judge presiding at tbe May Term, 1927, of tbe Superior Court of Craven County. Tbe order of tbe clerk was affirmed. There was no appeal from tbe judgment affirming tbe order of tbe clerk and denying defendant’s motion for removal. Tbe record does not show that defendant bas taken further action to have tbe cause removed to tbe District Court of tbe United States for trial. It is still pending in tbe State Court.

After defendant’s motion for removal bad been denied, plaintiffs moved before tbe clerk of tbe Superior Court for judgment by default and inquiry. 3 O. S., 593. From tbe refusal of tbe clerk to enter judgment upon this motion, plaintiffs appealed to tbe resident judge of tbe Superior Court. Upon tbe bearing of this appeal by tbe said judge on 2 July, 1927, at New Bern, N. C., both plaintiffs and defendant appeared by tbeir respective attorneys. After argument judgment was rendered by said judge, remanding tbe action to tbe clerk, with directions “to enter judgment for tbe plaintiffs in tbe form tendered, or in some other form of equivalent effect.” To this judgment defendant excepted.

Thereafter, on 25 July, 1927, tbe clerk of tbe Superior Court rendered judgment for plaintiffs and against defendant, by default and inquiry, directing therein that an issue be submitted to a jury to be empaneled at tbe next or at a subsequent term of tbe Superior Court of Craven County, for tbe assessment of damages, etc. To this judgment defendant excepted. She bas appealed therefrom to tbe judge of tbe Superior Court. It does not appear that this appeal bas been beard or disposed of. It is still pending.

This action is here upon tbe appeal of defendant from tbe judgment of tbe resident judge, remanding tbe action to tbe clerk, with directions. Only tbe validity of this judgment is, therefore, presented by this appeal. Defendant’s contention that tbe judgment is void, for that tbe resident judge was without jurisdiction to bear and determine tbe appeal from tbe clerk, is well founded.

In *S. v. Ray,*97 N. C., 510, it is held by this Court that each judge of tbe Superior Court bas general jurisdiction only in tbe judicial district to which be is assigned by statute enacted pursuant to tbe pro*323visions of section 11 of Article IY, of the Constitution of North Carolina, except in case of the exchange of courts with another judge, or of special commission to hold a special term of court in a particular county. It is there said that “this seems to have been understood as the law ever since the present system of judicature was established.” See *Moore v. Moore,*131 N. C., 371, where it is held that a resident judge holding court in another district cannot hear a motion to reduce alimony *pendente lite*in a suit pending in the district in which he resides. The judge assigned by statute to a district is the judge thereof for six months, beginning on 1 January or July, as the case may be. *Hamilton v. Icard,*112 N. C., 589. The resident judge has no jurisdiction, except such as has been or may be expressly conferred by statute.

In the absence of statutory provision to that effect, the resident judge óf a judicial district has no jurisdiction to hear and determine an appeal from a judgment of the clerk of the Superior Court of any county in his district, rendered pursuant to.the provisions of 3 C. S., 593, except when such judge is holding the courts of the district by assignment under the statute, or is holding a term of court by exchange, or under a special commission from the Governor. No jurisdiction is conferred upon the resident judge by the requirement of the Constitution that every judge of the Superior Court shall reside in the district for which he is elected. The General Assembly has power, however, to confer jurisdiction upon such judge by statute, as it has done in the case of a final order or judgment, affecting the merits of the case, rendered in a special proceeding, *ex parte,*where an infant or the guardian of an infant is a petitioner, C. S., 761; and also with respect to the hearing of restraining orders and injunctions. C. S., 852. There is no provision in the recent statutes enacted by the General Assembly to expedite and reduce the cost of litigation, providing that a resident judge may hear and determine appeals from judgments rendered by the clerks of the Superior Courts of the several counties as authorized by 3 C. S., 593.

The judgment appearing in the record rendered by the resident judge of the Fifth Judicial District, upon plaintiff’s appeal from the refusal of the clerk to render judgment upon plaintiff’s motion for judgment by default and inquiry, is void; it has no effect or validity. The judge was without jurisdiction to hear and determine the appeal.

However, the clerk has since rendered judgment upon plaintiff’s motion, and defendant’s appeal from this judgment to the judge of the Superior Court is now pending. Nothing appears in this record by which her right to be heard upon this appeal has been prejudiced.' The judge holding the courts of Craven County may hear and deter*324mine this appeal, without regard to the judgment of the resident judge, which has no force or effect, for the reason that he was without jurisdiction to render the judgment.

It does not appear from the record upon what grounds the clerk first refused to render judgment upon plaintiff’s motion — whether he was of opinion that he was without power to do so, or whether upon consideration of the motion he was of opinion that plaintiffs were not entitled to the judgment, upon their complaint. As he has subsequently heard the motion and rendered judgment, we conclude that he was of opinion, when the motion was first made, that he was without power. The statute expressly confers upon him the power to consider the motion and render judgment in accordance therewith, if he was of opinion that plaintiffs, upon their complaint, were entitled to judgment by default and inquiry. This appeal must be

Dismissed.