{
  "id": 8683383,
  "name": "L. A. TATE v. W. E. POWE and others",
  "name_abbreviation": "Tate v. Powe",
  "decision_date": "1870-06",
  "docket_number": "",
  "first_page": "644",
  "last_page": "648",
  "citations": [
    {
      "type": "official",
      "cite": "64 N.C. 644"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
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    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
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  "last_updated": "2023-07-14T17:28:35.890237+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "L. A. TATE v. W. E. POWE and others."
    ],
    "opinions": [
      {
        "text": "Pearson, C. J.\nTbe enactment, \u201cwrits of summons shall be returnable to tbe regular Terms of tbe Superior-Courts,\u201d in tbe act suspending tbe Code of Civil Procedure-in certain cases, applies only to civil actions. Tbe act concerning special proceedings, Acts 1868-\u201969, cb. 93, enacts,, that when there are adverse parties, \u201c tbe proceeding shall be commenced as is prescribed in civil actions,\u201d \u2014 that is by summons ; and tbe question is, should tbe summons be returnable before tbe Clerk, or before tbe Judge in term time. Tbe latter is tbe literal construction, and it must be admitted that there is a want of clearness in tbe several provisions of tbis Statute, caused, it would seem, in a great degree-by the fact, that, by reference to the Code, where u Superior Court,\u201d or \u201c Court\u201d is used, it means the Clerk of the Superior Court, except when the Court in term time, is referred to.\nThis novelty, as it may be termed, in our legislation, tends to produce a confusion of ideas, and I dare say many voted for the bill, thinking \u201c Superior Court\u201d meant \u201c Superior Court,\u201d although by this novelty, it means \u201c Clerk.\u201d But however this may be, the other sections of the \u201c act concerning special proceedings,\u201d show that, although, as in civil actions, the leading process is a summons, yet the summons must be returnable before the Clerk. So, it may be taken as agreed, that the summons in all civil actions is returnable before the Judge in term time, and the summons in special proceedings is returnable before the Clerk, in his .office, at amj time. The significance of the distinction between civil actions and special proceedings, grows out of the act of 16th of March, 1869, which requires the summons to be returnable before the Judge in term time, in \u201c all civil actions.\u2019\u2019 Thereupon, an effort is made to swell the list of \u201c special proceedings,\u201d so as, indirectly, to continue the jurisdiction of the Clerk, in evasion of that Statute.\nThere is an obvious propriety for ufestina remedia,\u201d in reference to a widow\u2019s Year\u2019s provision, or Dower. Under the County Court system, a petition could be filed every three months, and the question was, shall matters of this kind be delayed six months, or be heard before the Clerk, at his-office. The Statute under consideration, settles the question in regard to Year\u2019s provision and Dower; these two subjects, and that of Partition, are expressly declared to be special proceedings. Ejectment is obviously a civil action; as much so as an action for \u00e1 horse. This reference is necessary, because the Code Commissioners, in their second report, August 1868, set out Ejectment as a special proceeding ! \u2014 probably for the reason, that the Commissioners did. not advert to the fact, that ejectio finnrn is an original writ, set out in Eitzherbert\u2019s Nativra Brevivm; and this writ, by the shill of Chief Justice Bolle, was converted into the action of ejectment. \u201c Lease, entry and ouster;\u201d u John Doe and Bichard Boe,\u201d are bug-bears only to superficial readers.\nJudicial legislation in regard to practice and procedure, is a necessity. The many little \u201c odds and ends\u201d that the diversity in our way of living and talking presents, cannot be picked up and fastened by Statutes; such things must be confided to the Courts.\nWe might have expected that this Statute, emanating from the Code Commissioners, would have marked the dividing line between civil actions and special proceedings. But it is not so, for the reason, as may be presumed, it was a perplexing subject, fit to be left to judicial legislation. The questions occur every day: the mode of procedure is one of instant pressing necessity, and this Court must assume the task of making the dividing line.\nIt was suggested, as the dividing fine, that \u201c All actions which by the old English system were commenced by original writ, and by the North Carolina system, by a capias ad respondendum, are civil actions under the Code of Civil Procedure, including ejectment, for reasons above stated: All suits in equity, and proceedings by petition under statutes of this State, are special proceedings.\u201d This division is liable to the objection of being simply arbitrary. The definition of the Code is : \u201c An action is an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong.\u201d This definition embraces suits in equity for relief, as well as actions at law. \u201c To enforce a right or redress a wrong,\u201d is the purpose of a suit in equity as well as at law, and there is as much'reason for including the one as the other under the term \u201c civil action.\u201d By reference to other sections of the Code, it is manifest that the proceeding substituted for bills in equity for relief, as well as the proceeding substituted for writs at law, is \u201ca civil action.\u201d Among others, see Title XIII, \u201cAppeal in Civil Actions,\u201d sec. 306: \u201c If the judgment appealed from directs the conveyance of land \u201d \u2014 evidently having reference to a bill for a specific performance, or a bill to convert the defendant into a trustee: Section 307: \u201cIf the judgment appealed from direct the sale or delivery of possession of real property \u201d \u2014 evidently having reference to a bill in equity to to foreclose a mortgage, or an action of ejectment. In short, the Code assumes that bills in equity for relief, are included in the term \u201c civil actions;\u201d the Constitution having abolished the distinction between actions at law and suits in equity, and it being ordained: \u201cThe distinction between actions at law and suits in equity, and the forms of all such actions and suits, shall be abolished, and there shall be in this State but one form of action for the enforcement or protection of private rights, or the redress of private wrongs, which shall be denominated a civil action:\u201d Art. IV, sec. 1.\nJudge Battle being asked, as amicus curies, for his opinion, suggested that the dividing line might be, Whenever the proceeding, may 1)6 ex parte, it, is a special proceeding, although under particular circumstances there may be adversary parties. After some observations from the Bench, he concluded with his accustomed frankness, that this was not the true line.\nUpon consideration, we establish this as the dividing line: Any cause of action for which there is an original writ in England, (see Fitz. Nat.Brev.) or capias ad respondendum in this State, or which was relievable by ordinary bill in equity, as distinguished from bills to perpetuate testimony, for discovery, &c., is a u civil action f except in cases where the-remedy by petition is provided by statute.\nThe Court is obliged to suppose that the framers of the new Constitution had in view the old Constitution and the laws then in force, and that the intention was to allow old modes to prevail unless a change be expressly ordained.\nThe writ of dower and writ of partition are set out in Fitz. Nat. Brev. as original writs. True, under our statutes these rights are enforced by petition; but in the words of the Constitution either \u201c is a proceeding for the enforcement of a private right, which shall be denominated a civil action.\u201d\nOn this account I have had much consideration as to whether the statute concerning special proceedings does not violate the Constitution, in regard to Dower and Partition But in deference to the opinion of my Associate Justices, and the legislative construction put on this clause of the Constitution ; and in order to have the matter fixed, I do not dissent, and the line is now marked: Any proceeding that, under the old mode, was commenced by ccvpias ad responden-, dum, including ejectment, or by a bill in equity for relief, is a \u201c civil actionf any proceeding that, under the old mode, may be commenced by petition, or motion upon notice, is a \u201c special proceeding.\u201d\nThis will be certified.\nPee Cubiam. Reversed.\nNote. \u2014 The same decision was rendered at this term, in the case, L. A. Tate v. W. E. Powe, Ex\u2019r.. &c., for Year's Allowance.",
        "type": "majority",
        "author": "Pearson, C. J."
      }
    ],
    "attorneys": [
      "Burches, for tbe appellants.",
      "Bragg and Boyden & Bailey, contra."
    ],
    "corrections": "",
    "head_matter": "L. A. TATE v. W. E. POWE and others.\nThe summons in Special Proceedings is returnable before the Clerk.\nAny proceeding that under the old mode was commenced by capias ad' respondendum, (including Ejectment,) \u2014 or by a bill in equity for relief, is a \u201c Oivil Action any proceeding, that under the old mode, might be commenced by petition, or motion upon notice, is a \u201c Special Proceeding.\u201d\nProceedings for Dower, Partition, and Year\u2019s Allowance, are Special Proceedings.\nDower, before Mitchell, J., at Spring Term 1870, of Burke Court.\nTbe summons bad been made returnable to tbe Term of tbe Court. Tbe defendants moved to dismiss for want of jurisdiction.\nHis Honor refused to make tbis order, and tbe defendants \u2022 appealed.\nBurches, for tbe appellants.\nBragg and Boyden & Bailey, contra."
  },
  "file_name": "0644-01",
  "first_page_order": 668,
  "last_page_order": 672
}