Auten v. City of Asheville

193 S.E. 387, 212 N.C. 380, 1937 N.C. LEXIS 326

• Court: Supreme Court of North Carolina
• Decided: November 3, 1937
• Status: Published

Opinion

Stacy, C. J.

It is not alleged in tbe complaint tbat plaintiff was one of tbe interveners in tbe case of “Moreland v. Wamboldt ” reported in 208 N. C., 35. Tbe allegation is tbat be represented certain citizens and taxpayers who intervened therein for tbe purpose of appealing from tbe judgment rendered against tbe city of Asheville. True, be alleges tbe intervention resulted in great benefit to tbe defendant, but this was brought about by tbe action of bis clients, tbe interveners. It would seem tbat tbe plaintiff has sued tbe wrong party. His right of action, if any be have, is against those who employed him. Grant v. Lookout Mountain Co., 93 Tenn., 691, 28 S. W., 90, 27 L. R. A., 100; Meeker v. Winthrop Iron Co., 17 Fed., 48. An implication upon an implication, such as plaintiff here invokes, finds no support among tbe authorities to sustain bis action. He is not permitted to take this short cut. Non constat tbat tbe interveners may not be content to bear their loss or to defray tbe expenses which they incurred. Tbe plaintiff has no lien for bis services. Stephens v. Hicks, 156 N. C., 239, 72 S. E., 313.

Tbe complaint is bad as against a demurrer.

Eeversed.