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Davidson v. Gaston County Department of Social Services for Adoption of Margaret Michelle

Filed: April 20, 1982.

CLARENCE EDWARD DAVIDSON AND CAROLYN TUGGLE DAVIDSON
v.
GASTON COUNTY DEPARTMENT OF SOCIAL SERVICES FOR THE ADOPTION OF MARGARET MICHELLE (DAVIDSON)



Appeal by defendant from Burroughs, Judge. Judgment entered 16 April 1981 in Superior Court, Gaston County. Heard in the Court of Appeals 31 March 1982.

Wells, Judge. Judges Hill and Becton concur.

Wells

Two issues are raised by this appeal: one, whether the Superior Court had subject-matter jurisdiction to hear petitioners' motion, and two, whether the trial court properly granted

the partial opening of respondent's adoption file on Margaret Michelle Moore.

Respondent first contends that the Superior Court lacked jurisdiction to hear plaintiff's motion, arguing that adoption is by a special proceeding before the Clerk of Superior Court, G.S. 48-12, and that the Superior Court has no jurisdiction in an adoption proceeding except on appeal from the Clerk, relying on G.S. 48-26(b); In re Custody of Simpson, 262 N.C. 206, 136 S.E.2d 647 (1964); In re Daughtridge, 25 N.C. App. 141, 212 S.E.2d 519 (1975). While respondent's arguments do correctly reflect general legal principles, they ignore a separate procedural and jurisdictional scheme for cases initially heard before the Clerk, which is set out in Chapter 1 of the General Statutes. G.S. 1-273 provides:

§ 1-273. clerk to transfer issues of fact to civil issue docket.

If issues of law and of fact, or of fact only, are raised before the clerk, he shall transfer the case to the civil issue docket for trial of the issues at the next ensuing session of the superior court. (C.C.P., c. 115; Code, s. 256; Rev., s. 588; C.S., s. 634; 1971, c. 381, s. 12.)

G.S. 1-276 further provides:

§ 1-276. judge determines entire controversy; may recommit. --

Whenever a civil action or special proceeding begun before the clerk of a superior court is for any ground whatever sent to the superior court before the judge, the judge has jurisdiction; and it is his duty, upon the request of either party, to proceed to hear and determine all matters in controversy in such action, unless it appears to him that justice would be more cheaply and speedily administered by sending the action back to be proceeded in before the clerk, in which case he may do so. (1887, c. 276; Rev., s. 614; C.S., s. 637.)

Following a hearing on petitioners' 19 January motion, the Assistant Clerk of Superior Court denied the motion and entered an order finding facts and concluding that: "[i]ssues of fact and/or law have been raised and that such matters should properly be transferred to the civil issue docket for trial at ...


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