Grant v. . Newsom

81 N.C. 36

• Court: Supreme Court of North Carolina
• Decided: June 5, 1879
• Status: Published

Opinion

Smith, C. J.

If the case were properly before us we should find little difficulty in determining the questions intended to be presented. The cases cited for the appellant, and the provisions of the statutes referred to, leave little room to douht as to any of them. McCarson v. Richardson, 1 Dev. & Bat., 561; Aycock v. Harrison, 65 N. C., 8; Acts 1870-71, ch. 43, § 7; C. C. P., § 261. But we do not undertake to decide them, for the reason that the cause was not properly instituted in the superior court, and consequently is not properly before us on this appeal. The case agreed between the parties as “ containing the facts upon which the controversy depends,” is submitted without action under C. C. P., § 315, and as the proceeding is outside the common law, to give jurisdiction the requirements of the statute must be strictly observed.

But this is not the case. There is no accompanying affidavit, and the Code declares that “it must appear by affidavit that the controversy is real, and the proceeding in good faith, to determine the rights of the parties.” When this is done, the judge shall thereupon hear and determine the case, and render judgment thereon, as if an action were depending.. The affidavit is plainly an'^indispensable prerequisite to the exercise of jurisdiction in such a case; and' so it is declared by this, court in Hervey v. Edmunds, 68 N. C., 243. The appeal must therefore be dismissed.

Pee. Curiam. Appeal dismissed.