No. 738.

68 S.E.2d 810 (1952)

235 N.C. 73

WOODY et al. v. BARNETT et al.

Supreme Court of North Carolina.

February 1, 1952.

Attorney(s) appearing for the Case

R. B. Dawes, Thomas B. Woody, Jr., R. P. Burns, Roxboro, and R. P. Reade, Durham, for petitioners-appellants.

Gaither M. Beam, Louisburg, and Davis & Davis, Roxboro, for defendants-appellants.

BARNHILL, Justice.

The plaintiffs failed to perfect their appeal. The same has been dismissed under Rule 17. Hence the questions raised by the appeal of the defendants are the only ones posed for decision.

G.S. § 136-67 converts into neighborhood public roads "all those portions of the public road system of the state which have not been taken over and placed under maintenance or which have been abandoned by the state highway and public works commission, but which remain open and in general use as a necessary means of ingress to and egress from the dwelling house of one or more families". That is to say, the easements theretofore owned by the State in and to such segments of abandoned road are retained and reserved by the State for use by the public, not as public highways but as neighborhood public roads. Every segment of public road which has been abandoned as a part of the State road system coming within the terms of the statute is thus, by legislative enactment, established as a neighborhood public road.

All the petitioners seek in this proceeding is to obtain a judicial declaration of the existence of those facts which are necessary to bring the road in question within the definition contained in the statute, so as to procure the establishment thereof as a neighborhood public road as a matter of public record. They do not invoke the provisions of the Declaratory Judgment Act, G.S. § 1-253 et seq. The word "declare" as used in the prayer for relief means and was intended to mean "judicially determine" or "establish the existence of" the facts essential to show that said road has already, in fact, been established by the Legislature as a neighborhood public road.

The Legislature has vested in the clerks of the Superior Courts of the State jurisdiction over proceedings relating to the establishment, maintenance, alteration, discontinuance, or abandonment of neighborhood public roads, church roads, and cartways. This authority is contained in Art. 4 of Chap. 136 of the General Statutes. The pertinent section of the Code, G.S. § 136-67, is the first section thereof. Proceedings under this article of the Code ordinarily involve questions of fact rather than issues of fact. An expeditious method of entertaining and disposing of such proceedings, without unecessarily cluttering the civil issue docket of the Superior Court, was desired. To this end jurisdiction was vested in the clerk.

In view of the general scope of the jurisdiction vested in the clerk by said article and the inclusion therein of the provisions of law here invoked by the petitioners, it would seem to follow that this proceeding was properly instituted before, and should be disposed of initially by, the clerk of the Superior Court of Person County.

But let us concede that this is in fact a proceeding under the Declaratory Judgment Act in which the petitioners seek to have their rights and status under the statute, G.S. § 136-67, in respect to such easement, judicially determined and declared as provided by said Act. Even so, the demurrer is without merit and was properly overruled.

The office of the clerk of the Superior Court is the main reception room of the Superior Court. It is but a part of that institution which is devoted to the administration of legal remedies. Windsor v. McVay, 206 N.C. 730, 175 S.E. 83. The clerk is the officer in charge, as a servant of the court, Turner v. Holden, 109 N.C. 182, 13 S.E. 731, he is possessed of jurisdiction to grant many of the remedies afforded by the law. In so doing he is but a part of the Superior Court. Perry v. Bassenger, 219 N.C. 838, 15 S.E.2d 365. That he may have exceeded his authority affords no cause for booting the petitioners out of court. Williams v. Dunn, 158 N.C. 399, 74 S.E. 99; In re Anderson, 132 N.C. 243, 43 S.E. 649. Instead, the judge should proceed as if the clerk had taken no action other than to transfer the cause to the proper docket. Perry v. Bassenger, supra.

"Where the clerk exceeds his authority, Hodges v. Lipscomb, 133 N.C. 199, 45 S.E. 556, or has no jurisdiction, Roseman v. Roseman, supra [127 N.C. 494, 37 S.E. 518]; Williams v. Dunn, 158 N.C. 399, 74 S.E. 99, and the cause for any ground is sent to the judge, the judge may retain jurisdiction and dispose of the cause as if originally before him. Perry v. Bassenger, supra." McDaniel v. Leggett, 224 N.C. 806, 32 S.E.2d 602, 605; G.S. § 1-276; Moody v. Howell, 229 N.C. 198, 49 S.E.2d 233; Plemmons v. Cutshall, 230 N.C. 595, 55 S.E.2d 74; Bailey v. Davis, 231 N.C. 86, 55 S.E.2d 919; In re Estate of Johnson, 232 N.C. 59, 59 S.E.2d 223.

Therefore, in any event, the demurrer was properly overruled.

The allegations made in paragraph 3 of the complaint contain facts tending to show that the segment of abandoned road in question here remains "open and in general use as a necessary means of ingress to and egress from" not only the dwelling house of one or more families but also to and from two important county institutions. While the allegations are evidentiary in character, they are not of such prejudicial nature as to require a reversal. Hinson v. Britt, 232 N.C. 379, 61 S.E.2d 185. This is particularly true in the light of the fact the petition presents questions of fact for the court rather than issues of fact for a jury.

The judgment entered in the court below is



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