Grandy v. . Gulley

26 S.E. 779, 120 N.C. 176

Opinion

Fairoloth, C. J.:

This controversy was submitted without action, under The Gode, Sec. 567, upon an agreed state of facts. We cannot enter into the merits of the controversy, for the reason that the affidavit required by the Statute was not made or does not appear in the record. This mode of proceeding is unknown to the common law, and unless, the positive requirement of the Statute is observed the court is without jurisdiction.

It must appear by affidavit that the court would have jurisdiction if the proceeding was by summons; also that the controversy is real and the proceeding is in good faith. Jones v. Commissioners, 88 N. C., 56; Arnold v. Porter, 119 N. C., 123.

In Bank v. Loan & Trust Co., 119 N. C., 553, on motion, the defendant being present in this court and not objecting, the plaintiff was allowed to file the required affidavit, and the court proceeded to hear the case.

Proceeding Dismissed.