Axler v. City of Wilmington

Court of Appeals of North Carolina

Axler v. City of Wilmington

212 S.E.2d 510, 25 N.C. App. 110, 1975 N.C. App. LEXIS 2190

CourtCourt of Appeals of North Carolina

DecidedMarch 5, 1975

DocketNo. 745SC894

StatusPublished

Cited by2 cases

This text of 212 S.E.2d 510 (Axler v. City of Wilmington) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Axler v. City of Wilmington, 212 S.E.2d 510, 25 N.C. App. 110, 1975 N.C. App. LEXIS 2190 (N.C. Ct. App. 1975).

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Opinion

VAUGHN, Judge.

The record on appeal in this case was not docketed until 7 October 1974, more than six weeks later than the time permitted by Rule 5 of the Rules of Practice in this Court. No order allowing an extension of time within which to docket has been entered. Plaintiff was granted an extension of time within which to serve the case on appeal. The extension, however, expired on 6 September 1974, and the case on appeal was not tendered to appellee until 7 October 1974. For failure to comply with the rules of this Court, plaintiff’s appeal is subject to dismissal. We have, nevertheless, elected to consider the case on its merits.

The purpose of the restraining order authorized by G.S. 160A-446(f) is to protect an aggrieved party until there has been a final determination of a proceeding commenced by authority of Part 6, “Minimum Housing Standards,” of G.S. Chap. 160A, Art. 19.

Judicial review of administrative proceedings under a municipal ordinance authorized by the “Minimum Housing Standards” section of Article 19 is by “proceedings in the nature of certiorari instituted within 15 days of the decision of the board, but not otherwise.” (Emphasis added.) G.S. 160A-446(e). The purpose of the writ of certiorari is to bring the matter before the Court, upon the evidence presented by the record itself.

Plaintiff did not seek judicial review of the administrative decision about which he now complains, as authorized by the statute. He, instead, ignored them and now attempts to make [112]*112a collateral attack by this independent action seeking injunctive relief. Plaintiff failed to utilize the administrative remedies available to him and failed to follow the statutory procedures set out in G.S. 160A-446. For these reasons it was proper to dismiss this action against the city. Harrell v. City of Winston-Salem, 22 N.C. App. 386, 206 S.E. 2d 802.

Affirmed.

Judges Martin and Arnold concur.

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VAUGHN, Judge.

The record on appeal in this case was not docketed until 7 October 1974, more than six weeks later than the time permitted by Rule 5 of the Rules of Practice in this Court. No order allowing an extension of time within which to docket has been entered. Plaintiff was granted an extension of time within which to serve the case on appeal. The extension, however, expired on 6 September 1974, and the case on appeal was not tendered to appellee until 7 October 1974. For failure to comply with the rules of this Court, plaintiff’s appeal is subject to dismissal. We have, nevertheless, elected to consider the case on its merits.

The purpose of the restraining order authorized by G.S. 160A-446(f) is to protect an aggrieved party until there has been a final determination of a proceeding commenced by authority of Part 6, “Minimum Housing Standards,” of G.S. Chap. 160A, Art. 19.

Judicial review of administrative proceedings under a municipal ordinance authorized by the “Minimum Housing Standards” section of Article 19 is by “proceedings in the nature of certiorari instituted within 15 days of the decision of the board, but not otherwise.” (Emphasis added.) G.S. 160A-446(e). The purpose of the writ of certiorari is to bring the matter before the Court, upon the evidence presented by the record itself.

Plaintiff did not seek judicial review of the administrative decision about which he now complains, as authorized by the statute. He, instead, ignored them and now attempts to make [112]*112a collateral attack by this independent action seeking injunctive relief. Plaintiff failed to utilize the administrative remedies available to him and failed to follow the statutory procedures set out in G.S. 160A-446. For these reasons it was proper to dismiss this action against the city. Harrell v. City of Winston-Salem, 22 N.C. App. 386, 206 S.E. 2d 802.

Affirmed.

Judges Martin and Arnold concur.

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Bluebook (online)

212 S.E.2d 510, 25 N.C. App. 110, 1975 N.C. App. LEXIS 2190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/axler-v-city-of-wilmington-ncctapp-1975.

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