State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_1 > GS_1-301_1


Appeals and TransfersFrom the Clerk.

§ 1‑301.1.  Appeal ofclerk's decision in civil actions.

(a)        Applicability. –This section applies to orders or judgments entered by the clerk of superiorcourt in civil actions in which the clerk exercises the judicial powers of thatoffice. If this section conflicts with a specific provision of the GeneralStatutes, that specific provision of the General Statutes controls.

(b)        Appeal of Clerk'sOrder or Judgment. – A party aggrieved by an order or judgment entered by theclerk may, within 10 days of entry of the order or judgment, appeal to theappropriate court for a trial or hearing de novo. The order or judgment of theclerk remains in effect until it is modified or replaced by an order orjudgment of a judge. Notice of appeal shall be filed with the clerk in writing.Notwithstanding the service requirement of G.S. 1A‑1, Rule 58, orders ofthe clerk shall be served on other parties only if otherwise required by law. Ajudge of the court to which the appeal lies or the clerk may issue a stay ofthe order or judgment upon the appellant's posting of an appropriate bond setby the judge or clerk issuing the stay.

(c)        Duty of Judge onAppeal. – Upon appeal, the judge may hear and determine all matters in controversyin the civil action, unless it appears to the judge that any of the followingapply:

(1)        The matter is onethat involves an action that can be taken only by a clerk.

(2)        Justice would bemore efficiently administered by the judge's disposing of only the matterappealed.

When either subdivision (1) orsubdivision (2) of this subsection applies, the judge shall dispose of thematter appealed and remand the action to the clerk. When subdivision (1) ofthis subsection applies, the judge may order the clerk to take the action.

(d)        Judge's ConcurrentAuthority Not Affected. – If both the judge and the clerk are authorized by lawto enter an order or judgment in a matter in controversy, a party may seek tohave the judge determine the matter in controversy initially. (Rev.s. 529; C.S., s. 558; 1971, c. 381, s. 12; 1999‑216, s. 1.)