Benjamin Askew v. . James M. Pollack

66 N.C. 49

• Court: Supreme Court of North Carolina
• Decided: January 5, 1872
• Status: Published

Opinion

Dick, J.

The plaintiff alleges that lie is a creditor of the county of Jones, and he seeks to enforce the payment of his claim by a writ of -mandamus.

The proceedings were instituted against certain individuals, styling themselves Commissioners of Jones county. The statute expressly requires, “ All acts or proceedings by or against a county in its corporate capacity should be in the name of tbo board of' commissioners.” Commissioners of Cleaveland vs. Pegram, 65, N. C., 114.

The order to show cause, which is in tbe nature of tbe alternative writ of mandamus, ought not to have been, directed to the individuals composing the Board, as it is only in case of disobedience that they are liable to be proceeded against individually.

The defennants moved to quash the proceedings as they are not in accordance with tbe requirements of the statute.

This motion was in the nature of a ’special demurrer, and might to have been allowed, unless there was a motion to amend. It is all important that the forms required by law shall be complied with, so that legal proceedings may be conducted with regularity, precision and certainty. No motion for an amendment was made, and ilia Honor refused to quash the irregular proceedings. In this there was error. As this erroneous ruling was the ground for the appeal for the defendants, an amendment cannot, be allowed in this Court, which would defeat the cause ot appeal. We must decide this case as His Honor ought to have done upon the proceedings as they appeared before him. The proceedings must bo quashed, for the cause assigned by defendants.