Granville County Board of Education v. State Board of Education

10 S.E. 1002, 106 N.C. 81

• Court: Supreme Court of North Carolina
• Decided: February 5, 1890
• Status: Published

Opinion

Clark, J.:

The defendant moves to dismiss the action on the ground that the defendant is only an agency of the State, and the Court has no jurisdiction to entertain the action, as the State does not consent to be sued. The Code, §2503, incorporates the defendant, and directs, among other things, that it “may sue and be sued as such.” This is sufficient consent, if such be necessary. In Bain v. The State, 86 N. C., 49, the Court expressly holds that the Insane Asylum can be sued. Actions against that institution, and against the other great State agency and charity, the Institution for the Deaf and Dumb and the Blind, have been entertained by the Courts. Ellis v. North Carolina Institution for the Deaf and Dumb and the Blind, 68 N. C., 423, and other cases.

Even were not this beyond question, as the proceeding is to compel public officers to discharge a mere ministerial duty not involving an official discretion, the action will lie. Raleigh and Augusta Air-Line Railroad Co. v. Jenkins, 68 N. C., 502; Marbury v. Madison, 1 Cranch, 49. The duties here sought to be enforced are purely ministerial. The Code, §§ 2535 and 2537.

The defendant was allowed sixty-five days to file answer. It filed its answer before the time was out. After answer filed, but within the sixty-five days, it made the motion to remove, and from the refusal thereof appealed. The plaintiff contends that the motion came too late. The point is an adjudicated one. In McMinn v. Hamilton, 77 N. C., 300, it is held, “ if the defendant pleads to the merits of the action, he will be taken to have waived the objection” to the venue. To same effect Lafoon, v. Shearin, 91 N. C., 370, and Morgan v. Bank, 93 N. C., 352. In the latter case, the Court say, “the objection must be made in limine before putting in answer.” It is true that here the motion to remove was made before the lapse of the time allowed defendant to answer,Jbut it was after the answer was filed and it had pleaded to the merits. By its own choice it had shortened the time allowed it, and, after filing the answer, there was no furtherftime in which an answer could be filed. The time for answering expired when the answer was filed.

Affirmed.