Opinion
No. 8221SC1076
Filed 6 December 1983
Courts 2; Rules of Civil Procedure 41.2 — lack of personal jurisdiction — law of the case — no authority to grant 30 days to begin new action Where the trial court's order that it lacked personal jurisdiction over respondents became the law of the case when petitioner withdrew its appeal therefrom, the court was without authority to enter any order granting any relief, and the court thus did not have authority to grant petitioner the relief of 30 days within which to commence a new action based on the same claim.
APPEAL by respondents from DeRamus, Judge. Order entered 13 August 1982 in Superior Court, FORSYTH County. Heard in the Court of Appeals 31 August 1983.
P. Eugene Price, Jr. and Jonathan V. Maxwell for respondent appellants.
No brief filed for petitioner appellee.
Judge PHILLIPS dissenting.
Petitioner requested a special use permit to establish a quarry, and respondents denied the request. Petitioner then petitioned the superior court, pursuant to G.S. 160A-388 (e), for certiorari and judicial review. Respondents, pursuant to G.S. 1A-1, Rule 12 (b), moved to dismiss for lack of jurisdiction over the person on the alleged grounds that the petition had not been legally or properly served on them, and no summons had been issued, directed to, or served on any respondent. The trial court granted the motion, but provided pursuant to G.S. 1A-1, Rule 41 (b) that the action was dismissed without prejudice and respondents were allowed thirty days within which to commence a new action based on the same claim.
Respondents gave notice of appeal from the "without prejudice" portion of the order. Petitioner gave notice of cross appeal from the order itself.
On 10 November 1982 this Court allowed petitioner's motion to withdraw its cross appeal. The matter is thus before us solely on respondents' appeal from that portion of the order providing that the dismissal was without prejudice to commencement of a new action.
Because petitioner withdrew its cross appeal, the order, except for the portion from which respondents appeal, has become the law of the case. Whether it is correct or erroneous, the parties are bound by it. Gower v. Insurance Co., 281 N.C. 577, 580, 189 S.E.2d 165, 167 (1972); see also Gaskins v. Insurance Co., 260 N.C. 122, 124, 131 S.E.2d 872, 873 (1963).
The law of this case is, then, that the court lacks personal jurisdiction over the respondents. When a court lacks jurisdiction, it is "without authority to enter any order granting any relief." Swenson v. Assurance Co., 33 N.C. App. 458, 465, 235 S.E.2d 793, 797 (1977). "When a court has no authority to act, its acts are void." Russell v. Manufacturing Co., 266 N.C. 531, 534, 146 S.E.2d 459, 461 (1966). A court without jurisdiction is, for example, without authority to entertain a motion for summary judgment or to enter any judgment except a formal order of dismissal, Sink v. Easter, 284 N.C. 555, 561, 202 S.E.2d 138, 143 (1974); and it does not have the power to enter a default judgment, Russell v. Manufacturing Co., supra.
Because the court was "without authority to enter any order granting any relief," Swenson, supra, it did not have authority to grant petitioner the relief of thirty days within which to commence a new action based on the same claim; and its action in this respect is void. In our view the foregoing authorities establish the invalidity of dicta to the contrary in the Court of Appeals version of Gower v. Insurance Co., 13 N.C. App. 368, 374-75, 185 S.E.2d 722, 726-27 (1972), which dicta our Supreme Court expressly declined to approve or disapprove, see Gower, 281 N.C. at 581, 189 S.E.2d at 168.
For the foregoing reasons, the portion of the order from which respondents appeal is
Vacated.
Chief Judge VAUGHN concurs.
Judge PHILLIPS dissents.