Ervin LETTERLOUGH, Plaintiff-Employee,
v.
John Henry AKINS, Non-Insurer, Defendant-Employer.
No. 521.
Supreme Court of North Carolina.
November 21, 1962.*217 Ottway Burton and Linwood T. Peoples, Asheboro, for plaintiff.
John Randolph Ingram, Asheboro, for defendant.
MOORE, Justice.
The Industrial Commission is not a court of general jurisdiction. It is an administrative board with quasi-judicial functions and has a special or limited jurisdiction created by statute and confined to its terms. Its jurisdiction may not be enlarged or extended by act or consent of parties, nor may jurisdiction be conferred by agreement or waiver. Hart v. Thomasville Motors, 244 N.C. 84, 92 S.E.2d 673; Reaves v. Earle-Chesterfield Mill Co., 216 N.C. 462, 5 S.E.2d 305. To sustain the jurisdiction of the Commission it must affirmatively appear that the employer, which it undertakes to bind by its award, had as many as five men in his or its employment. Chadwick v. North Carolina Department of Conservation and Development, 219 N.C. 766, 14 S.E.2d 842.
Defendant has insisted in the agreement and release signed by him and in every step and stage of this proceeding that he did not have as many as five men in his employment and was not subject to the provisions of the Workmen's Compensation Act. We find nothing in the record tending to show affirmatively that he had five or more employees and that the Commission had jurisdiction. The matter of jurisdiction has not been determined. A challenge to the jurisdiction may be made at any time, since a judgment entered without jurisdiction is a void judgment without legal effect and may be treated as a nullity. Hart v. Thomasville Motors, supra. The court below properly directed the Industrial Commission to vacate and set aside its order and award in toto.
However, it is our opinion that the court erred in directing the Commission to dismiss the proceeding. Whether or not the Commission has jurisdiction has not been properly determined. "Where its jurisdiction depends on the existence of certain facts, the * * * commission has the authority to determine whether such facts exist * * *." 100 C.J.S. Workmen's Compensation § 425d, p. 272. It is not error for the Superior Court to remand a proceeding "in order that the facts with respect to the number of employees in the employment of the defendant at the time the * * employee was injured might be ascertained by the Industrial Commission." Thompson v. Johnson Funeral Home, 208 N.C. 178, 179 S.E. 801. It is true that the Commission may not ex mero motu institute a proceeding. But the jurisdiction of the Commission is invoked either when a claim for compensation is filed or a voluntary settlement is submitted for approval. In approving settlements the Commission acts in its judicial capacity. Biddix v. Rex Mills, Inc., 237 N.C. 660, 75 S.E.2d 777. In presenting the agreement and release to the Commission for approval, the parties instituted the present proceeding. In every proceeding before the Commission determination of jurisdiction is the first order of business. Determinative facts upon which rights of parties are made to rest must be found from judicial admissions made by the parties, facts agreed, stipulations entered into and noted at the hearing, and evidence offered in open court, after all parties have been given full opportunity to be heard. *218 "Recourse may not be had to records, files, evidence, or data not thus presented to the court." Biddix v. Rex Mills, Inc., supra. The instant proceeding should be remanded for a proper hearing. Should it be determined therein that the Commission has no jurisdiction, the proceeding should be dismissed. If the Commission has jurisdiction, it should proceed according to law. From any and all orders and awards made pursuant to the hearing an appeal will lie.
The proceeding is remanded to Superior Court. It will remand to the Industrial Commission with directions that the order and award of the Commission appealed from be vacated and set aside, and proceedings be had in accordance with this opinion.
Error and remanded.