State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_1 > GS_1-301_2

§ 1‑301.2.  Transfer orappeal of special proceedings; exceptions.

(a)        Applicability. – Thissection applies to special proceedings heard by the clerk of superior court inthe exercise of the judicial powers of that office. If this section conflictswith a specific provision of the General Statutes, that specific provision ofthe General Statutes controls.

(b)        Transfer. – Exceptas provided in subsections (g) and (h) of this section, when an issue of fact,an equitable defense, or a request for equitable relief is raised in a pleadingin a special proceeding or in a pleading or written motion in an adoptionproceeding, the clerk shall transfer the proceeding to the appropriate court.In court, the proceeding is subject to the provisions in the General Statutesand to the rules that apply to actions initially filed in that court.

(c)        Duty of Judge onTransfer. – Whenever a special proceeding is transferred to a court pursuant tosubsection (b) of this section, the judge may hear and determine all matters incontroversy in the special proceeding, unless it appears to the judge thatjustice would be more efficiently administered by the judge's disposing of onlythe matter leading to the transfer and remanding the special proceeding to theclerk.

(d)        Clerk to Decide AllIssues. – If a special proceeding is not transferred or is remanded to theclerk after an appeal or transfer, the clerk shall decide all matters incontroversy to dispose of the proceeding.

(e)        Appeal of Clerk'sDecisions. – Except as provided in G.S. 46‑28.1(f), a party aggrieved byan order or judgment of a clerk that finally disposed of a special proceeding,may, within 10 days of entry of the order or judgment, appeal to theappropriate court for a hearing de novo. Notice of appeal shall be in writingand shall be filed with the clerk. The order or judgment of the clerk remainsin effect until it is modified or replaced by an order or judgment of a judge.A judge 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. Any matter previously transferred anddetermined by the court shall not be relitigated in a hearing de novo underthis subsection.

(f)         Service. – Notwithstandingthe service requirement of G.S. 1A‑1, Rule 58, orders of the clerk shallbe served on other parties only if otherwise required by law.

(g)        Exception forIncompetency and Foreclosure Proceedings and Proceedings to PermitSterilization for Medical Necessity. –

(1)        Proceedings foradjudication of incompetency or restoration of competency under Chapter 35A ofthe General Statutes, or proceedings to determine whether a guardian mayconsent to the sterilization of a mentally ill or mentally retarded ward underG.S. 35A‑1245, shall not be transferred even if an issue of fact, anequitable defense, or a request for equitable relief is raised. Appeals fromorders entered in these proceedings are governed by Chapter 35A to the extentthat the provisions of that Chapter conflict with this section.

(2)        Foreclosureproceedings under Article 2A of Chapter 45 of the General Statutes shall not betransferred even if an issue of fact, an equitable defense, or a request forequitable relief is raised. Equitable issues may be raised only as provided inG.S. 45‑21.34. Appeals from orders entered in these proceedings aregoverned by Article 2A of Chapter 45 to the extent that the provisions of thatArticle conflict with this section.

(h)        Exception forPartition Proceedings. – Notwithstanding the provisions of subsection (b) ofthis section, the issue whether to order the actual partition or the sale inlieu of partition of real property that is the subject of a partitionproceeding shall not be transferred and shall be determined by the clerk. Theclerk's order determining this issue, though not a final order, may be appealedpursuant to subsection (e) of this section.  (C.C.P., c. 115; Code, s. 256; 1903, c. 566; Rev.,ss. 588, 717; C.S., ss. 634, 758; 1971, c. 381, s. 12; 1995, c. 88, s. 2; 1999‑216,s. 1; 2003‑13, s. 2; 2009‑362, s. 5.)