STATE of North Carolina
v.
John EARLEY.
No. 7429SC785.
Court of Appeals of North Carolina.
January 2, 1975.*542 Hamrick & Hamrick by J. Nat Hamrick, Rutherfordton, for defendant-petitioner.
Owens & Arledge by Hollis M. Owens, Jr., Rutherfordton, for Piedmont-Interstate Warehouse System.
BROCK, Chief Judge.
At the outset we are confronted with the question of Judge Martin's jurisdiction in a criminal case to adjudicate conflicting claims of title to allegedly stolen property which has been used in evidence and in which case the prosecution has been completed. We have no statute upon the subject, and we find no case law in this State which covers the subject.
Our research leads us to believe that sound reasoning dictates that under the facts presented, Judge Martin did not have such jurisdiction in a criminal case.
When the person from whose possession the allegedly stolen property was seized as evidence was not convicted of (or was not charged with) obtaining the property in violation of the law, and there is a controversy between him and the person from whom the property was allegedly stolen as to which has the right to it, a question is presented which cannot be determined *543 in a criminal action but must be determined in an independent civil action. After the final disposition of the criminal case, a civil action among the various claimants to the property is the proper action in which title or right to possession can be adjudicated. See Lawrence v. Mullins, 224 Tenn. 9, 449 S.W.2d 224; Homolko v. State, 155 Tenn. 467, 295 S.W. 66; 68 Am.Jur.2d, Searches & Seizures, § 119; 79 C.J.S. Searches and Seizures § 114.
We do not reach a review of the merits of the disposition of the property by Judge Martin because the jurisdiction of the appellate courts on an appeal is derivative. If the trial court has no jurisdiction, the appellate courts cannot acquire jurisdiction by appeal. 1 Strong, N.C. Index 2d, Appeal and Error, § 1.
Appellee urges that appellant petitioned the trial court in this criminal case for possession of the forty-one rolls of cloth and thereby voluntarily submitted the matter to its jurisdiction. It is a well-established principle that jurisdiction over the subject matter cannot be conferred upon a court by consent, waiver, or estoppel. 2 Strong, N.C. Index 2d, Courts, § 2.
For lack of jurisdiction in the trial court, its order entered in this criminal action on 24 May 1974 adjudicating title and right to possession of the forty-one rolls of cloth must be vacated and the proceeding dismissed.
Order vacated.
Proceeding dismissed.
PARKER and MARTIN, JJ., concur.