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Circle J. Farm Center Inc. v. Fulcher

Filed: May 4, 1982.

CIRCLE J. FARM CENTER, INC.
v.
RICHARD E. FULCHER & WILLIAM E. FULCHER



Appeal by plaintiff from Rountree, Judge. Judgment entered 12 May 1981 in District Court, Craven County. Heard in the Court of Appeals 30 March 1982.

Clark, Judge. Judges Arnold and Webb concur.

Clark

Plaintiff assigns as error the trial court's granting of the motion to dismiss and argues that the proper procedure would have been to transfer the action to superior court pursuant to G.S. 7A-258.

It is clear that the superior court is the proper division in which this action should have been brought since the amount in controversy exceeds $5,000. G.S. 7A-243. It is fairly common practice for an attorney to institute an action in district court, although not the proper division, in order to schedule an earlier trial date than would be available on the superior court calendar. This practice is allowed since original civil jurisdiction is vested concurrently in both divisions and since a judgment is not void or voidable solely because it was rendered in the improper trial division. G.S. 7A-240 and 7A-242; Stanback v. Stanback, 287 N.C. 448, 215 S.E.2d 30 (1975). In the absence of a proper objection, an action begun in the wrong division may continue in that division to its conclusion.

However, in the case sub judice, defendant William Fulcher objected to the institution of the action in district court. While

the better procedure might have been to move to transfer the action to superior court pursuant to G.S. 7A-258, a motion to dismiss for improper division is also specifically authorized by Rule 12(b)(3) which provides for dismissal for "Improper venue or division." After defendant's motion to dismiss was filed, plaintiff's remedy was to move to transfer the action to superior court pursuant to G.S. 7A-258. Plaintiff did not make such a motion, but merely filed a response in opposition to defendant's motion to dismiss. Even after the action was dismissed, plaintiff could have filed another action in superior court since the dismissal was necessarily without prejudice. Instead of choosing either of these courses of action, plaintiff elected to proceed with an appeal to this Court. We view this appeal with disapproval since plaintiff did not elect to pursue the other remedies available to it, each of which would have brought this action to an earlier resolution than does the appeal process.

Defendant clearly had the right to object to the institution of the action in district court rather than superior court. We hold that the trial court did not err in granting defendant's motion to dismiss pursuant to Rule 12(b)(3).

Affirmed.

Disposition

Affirmed.

19820504

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