Opinion
(September Term, 1887.)
Mandamus — Jurisdiction.
1. In an application for a writ of mandamus to enforce the payment of a money demand, the summons must be returned to term time, and the cause conducted as in civil actions.
2. In applications for the writ to enforce other demands, the summons shall be returned before the judge at chambers, who may hear and determine both the law and the facts.
3. Want of jurisdiction cannot be waived, and may be taken advantage of at any stage of the action. The Code, sec. 623.
( Belmont v. Reily, 71 N.C. 260; Steele v. Comrs., 70 N.C. 137; Tucker v. Baker, 86 N.C. 1; Froelich v. Express Co., 67 N.C. 1: S. v. Benthall, 82 N.C. 664; Long v. Jarratt, 94 N.C. 443, cited and approved.)
THIS was an application for mandamus, which was heard before Philips, J., at chambers at Pittsboro 26 May, 1887.
(130) John Manning and John W. Graham for plaintiff.
J. B. Batchelor and R. C. Strudwick for defendant.
William H. Rogers, the plaintiff, is the duly qualified treasurer of the town of Durham, and ex-officio the treasurer of the school committee of the said town, and the defendant, W. A. Jenkins, is the duly qualified treasurer of the county of Durham.
The plaintiff alleges that there is in the hands of the defendant the sum of $1,667.60, to which, by the provisions of chapter 86, Acts of 1887, "in relation to the public schools in the town of Durham," the plaintiff, as treasurer of said school committee, is entitled; that he has made demand therefor, and the defendant refused, and still refuses, to pay the same, and he "prays that the writ of mandamus issue to the defendant Jenkins, treasurer of Durham County, commanding him to pay the plaintiff the sum of $1,667.60, and for such other and further relief," etc.
The summons was issued by the clerk of the Superior Court of Durham County, on 13 May, 1887, returnable "before the judge, Fred. Philips, at chambers in Pittsboro" on the 25th day of said month.
The defendant demurred to the complaint, and the cause was heard 26 May, before Philips, J., at chambers in Pittsboro upon the complaint and demurrer, when the demurrer was overruled and judgment rendered in favor of the plaintiff, from which the defendant appealed.
In this Court the defendant moved to dismiss the action for want of jurisdiction. Section 623 of The Code provides that, "In all such applications (for writs of mandamus), when the plaintiff seeks to enforce a money demand, the summons, pleading and practice shall be the same as is provided for in civil actions." It further provides that when relief other than money demand is sought, the summons (131) shall be made returnable before the judge at chambers or in term as specified in the section.
This action is to "enforce a money demand," and should have been brought to the Superior Court of Durham County in term.
The summons was improperly returnable before the judge at chambers. He had no jurisdiction. The action was not brought to Durham Superior Court in term — was never in that court — and the motion must be allowed. Belmont v. Reily, 71 N.C. 260; Steele v. Comrs., 70 N.C. 137.
Want of jurisdiction cannot be waived, and the objection may be taken at any time. Tucker v. Baker, 86 N.C. 1; Froelich v. Express Co., 67 N.C. 1; S. v. Benthall, 82 N.C. 664; Long v. Jarratt, 94 N.C. 443.
The action must be dismissed for want of jurisdiction.
Dismissed.
Cited: Knowles v. R. R., 102 N.C. 63; Hughes v. Comrs., 107 N.C. 605; Ducker v. Venable, 126 N.C. 449; Board of Education v. Comrs., 189 N.C. 653.