dissenting: I am unable to agree that the judgment below should be affirmed on this record.
In the beginning of the judgment appealed from it is recited that “This cause came on' for hearing before the undersigned Special Judge presiding at May 1942 Civil Term of the Superior Court of Harnett County.” But later in the same paragraph it is stated that “It was agreed by counsel representing plaintiff and defendant that the hearing upon the citation in this cause should be heard upon affidavits and briefs, out of term time, out of the County and out of the District by the undersigned Special Judge of the Superior Court.” A stipulation to the same effect appears in the record. The special judge resides in Sampson County, in the 6th Judicial District. It also appears that the affidavits, printed in the record, upon which the judgment appealed from was based, were verified subsequent to the May Civil Term of Harnett Superior Court and some as late as August, 1942. Thus the record is strongly persuasive that the hearing was had and the judgment rendered after the term of court for which the special judge had been commissioned had expired, and out of the county where the cause was pending. While it is not affirmatively so stated in the record, the clear implication to this effect is presented by the record itself, and I do not think it can be overlooked. Was the agreement referred to in the stipulation carried out, and as a matter of fact was the hearing had and judgment rendered otherwise than at the term of court for which the special judge was commissioned ?
The majority opinion proceeds upon the view that the recitation in the preamble of the judgment that the cause came on for hearing at the May Civil Term of the court (for which the special judge was commissioned) is conclusive, in the absence of exception or assignment of error based upon contrary showing.
True, no reference is made to the matter in the brief. The only exception is to the judgment. Counsel, having entered into an agreement, doubtless felt personally bound by it, and have not sought to evade it. But what is the duty of the court when, upon appeal from the judgment, the entire record is before it and a fatal defect, rendering the judgment void, is apparent? Should not the court in the performance of its high duty of administering justice according to law, and in the exercise of its constitutional power of supervising and controlling the proceedings of courts below, in view of the condition of the record apparently indicating *189a jurisdictional error, at least inform itself (if there be uncertainty) as to a fact upon which would depend the validity of the judgment?
If, as a matter of fact, the hearing was had and the judgment rendered out of term and after the commission of the special judge had expired, and at a time when he was no longer clothed with power and authority to exercise judicial functions in Harnett County, then the judgment would be void with the result that a citizen has been deprived of his liberty and committed to jail under a purported judgment rendered in excess of the authority given the judge by the Constitution and laws of the State. Under those circumstances the court should act ex mero motu upon that fact being made to appear in a case properly brought before it. Branch v. Houston, 44 N. C., 85; S. v. King, ante, 137 (141). For it is well settled that where power to hear and judicially determine a matter is wanting, jurisdiction cannot be conferred by consent. “Jurisdiction, not given by law, may not be conferred on a court or commission, as such, by waiver or consent of parties.” Dependents of Thompson v. Funeral Home, 205 N. C., 801, 172 S. E., 500; Reaves v. Mill Co., 216 N. C., 462, 5 S. E. (2d), 305. This was not an arbitration, but a judicial determination of a litigated cause properly constituted in the Superior Court.
What are the powers of special judges under the Constitution and laws of North Carolina? The constitutional provision for the appointment of special judges is set out in Art. IV, sec. 11, of the Constitution, from which I quote as follows: “The General Assembly may by general laws provide for the selection of special or emergency judges to hold the Superior Courts of any county, or district, when the judge assigned thereto, by reason of sickness, disability, or other cause, is unable to attend and hold said court, and when no other judge is available to hold the same. Such special or emergency judges shall have the power and authority of regular judges of the Superior Courts, in the courts which they are so appointed to hold.”
Thereafter the General Assembly, in the exercise of the power thus conferred, enacted ch. 51, Public Laws 1941 (amending previous statutes on the subject), section 5 of which I quote as follows: “To the end that such special judges shall have the fullest power and authority sanctioned by Article four, section eleven, of the Constitution of North Carolina, such judges are hereby vested, in the courts which they are duly appointed to hold, with the same power and authority in all matters whatsoever that regular judges holding the same courts would have. A special judge duly assigned to hold the court of a particular county shall have during said term of court, in open court and in chambers, the same power and authority of a regular judge in all matters whatsoever arising *190in that judicial district that could properly be beard or determined by a regular judge bolding tbe same term of court.”
Naturally tbe General Assembly could not grant power and authority to special judges beyond that fixed by tbe Constitution. Greene v. Stadiem,, 197 N. C., 472, 149 S. E., 685. Thus while tbe power and authority of special judges is that of regular judges of tbe Superior Court, these judicial powers, under tbe Constitution and tbe statute, are to be exercised by special judges only “in tbe counties which they are so appointed to bold.” Tbe power conferred is subject to that definite limitation. As was said by Brogden, J., in Ipock v. Bank, 206 N. C., 791 (796), 175 S. E., 127, “Therefore it is manifest that tbe power of Special and Emergency Judges is defined and bounded by tbe words ‘in tbe courts which they are so appointed to bold.’ ” Consequently, it has been held that a special judge must have a separate commission from tbe Governor for each term of court be is appointed to bold, and that tbe commission properly should recite tbe constitutional ground and necessity for tbe appointment. Dunn v. Taylor, 186 N. C., 254, 119 S. E., 495. Tbe uniform decisions of this Court, interpreting these provisions of tbe Constitution and laws of tbe State, are to tbe effect that a special judge bolding a term of court under commission from tbe Governor, has all tbe power and authority that a regular judge of tbe Superior Court could have, both as to tbe trial of causes, tbe bearing of motions, and tbe issuance of all orders, writs and judgments, in the court which be is appointed to bold, but that, when tbe term ends and be leaves tbe county, be becomes functus officio, and bis authority as a judge in that particular county ceases, as much so as if bis term of office bad ended. Ipock v. Bank, 206 N. C., 791, 175 S. E., 127; Reid v. Reid, 199 N. C., 740, 155 S. E., 719; Greene v. Stadiem,, 197 N. C., 472, 149 S. E., 685; Dunn v. Taylor, 186 N. C., 254, 119 S. E., 495.
In Reid v. Reid, supra, tbe action was for divorce, pending in Anson County. Tbe wife, who was tbe defendant, filed motion for alimony pendente lite. Tbe motion was continued to be beard before Judge Stack, resident judge in Union County, and was again continued, at tbe instance of tbe plaintiff, to be beard before Special Judge Thomas L. Johnson in Chambers at Albemarle in Stanly County. Johnson was then bolding court under commission from tbe Governor appointing him to bold a specific term of court in Stanly County. Judge Johnson beard tbe matter and signed an order awarding tbe defendant alimony pendente lite, and tbe plaintiff, tbe husband, appealed. Here, it was held tbe order was void, and tbe cause was remanded. Tbe Court said: “Tbe fact that tbe defendant’s motion was made returnable in Stanly County at tbe instance of tbe plaintiff, or even by consent, can have no bearing-on tbe power of tbe court to bear tbe matter. Jurisdiction, withheld by *191law, may not be conferred on a court, as such, by waiver or consent of tbe parties (citing authorities). The order, therefore, will be stricken out as the Special Judge was without authority to sign the same under the commission held by him at the time, and the cause will be remanded for further proceeding not inconsistent with the rights of the parties.”
In the case at bar Special Judge Johnson’s commission empowered him to hold the May Civil Term of Harnett Superior Court, a one-week term beginning 4 May, 1942. That commission expired at the end of the term. The judgment does not purport to have been rendered in any' court for which Judge Johnson held commission other than the May Term, 1942, of Harnett.
In view of the condition of the record, indicating lack of jurisdiction and power on the part of the special judge to render the judgment appealed from, before affirming the indefinite imprisonment of the plaintiff thereunder, I think the Court should at least obtain, by proper means, information as to these jurisdictional facts, and that, in the event it is disclosed that the judgment was void as beyond the power of the special judge, the cause should be remanded for further proceedings according to law.
It may be that the plaintiff is guilty of willful contempt and disobedience of the orders of court, and subject to the coercive penalties of the law, but I think the determination should be by a tribunal with full power and authority, under the Constitution and laws of the State, to so adjudge, and to punish him therefor.
ScheNCk, J., concurs in this opinion.