Revels v. Oxendine

Supreme Court of North Carolina

Revels v. Oxendine

139 S.E.2d 737, 263 N.C. 510, 1965 N.C. LEXIS 1318

CourtSupreme Court of North Carolina

DecidedJanuary 15, 1965

StatusPublished

Cited by1 cases

This text of 139 S.E.2d 737 (Revels v. Oxendine) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Revels v. Oxendine, 139 S.E.2d 737, 263 N.C. 510, 1965 N.C. LEXIS 1318 (N.C. 1965).

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Opinion

HiggiNS, J.

At the threshold of this case we are confronted with a question of law not discussed or alluded to by either party but which appears upon the face of the record — the incapacity of the plaintiff committee to bring this action. Hence it becomes our duty ex mero motu to take notice of the defect. “If a court finds at any stage of the proceedings it is without jurisdiction, it is its duty to take notice of the defect and stay, quash or dismiss the suit. . . . ‘So, ex necessitate the court may, on plea, suggestion, motion, or ex mero motu,. where the defect of jurisdiction is apparent, stop the proceeding.’ ” Burgess v. Gibbs, 262 N.C. 462, 137 S.E. 2d 806.

G.S. 115-27 provides: “The board of education of each county . . . shall be a body corporate . . . capable of . . . prosecuting and defending suits for or against the corporation.” See Fields v. Board of Education, 251 N.C. 699, 111 S.E. 2d 910. G.S. 115-70 provides: “The county board of education . . . shall elect and appoint school committees for each of the several districts in their counties.” G.S. 115-69 [512]*512through 73 fixes the qualification and duties of school committees. The law does not give a committee corporate status; neither does it authorize a committee to sue or defend. These important functions are assigned to the county and city boards of education.

Sound reason exists for failure of the Legislature to give school committees corporate status with the right to sue and defend in the courts. In fact, committees are not given final authority. Their acts are under, subordinate to, and controlled by, the county or city boards. “County and city boards of education, subject to any paramount powers vested by law in the State Board of Education or any other authorized agency shall have general control and supervision of all matters pertaining to the public schools in their respective administrative units; they shall execute jfche school laws in their units.” G.S. 115-27. School committees are not given the right to sue. That right does not arise by necessary implication from any duties assigned to them. We are forced to conclude, therefore, that the plaintiffs did not have the legal capacity to institute this action. For that reason we do not discuss any other questions but remand the cause to the Superior Court of Robeson County for the entry of judgment dismissing the action.

Remanded with direction.

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HiggiNS, J.

At the threshold of this case we are confronted with a question of law not discussed or alluded to by either party but which appears upon the face of the record — the incapacity of the plaintiff committee to bring this action. Hence it becomes our duty ex mero motu to take notice of the defect. “If a court finds at any stage of the proceedings it is without jurisdiction, it is its duty to take notice of the defect and stay, quash or dismiss the suit. . . . ‘So, ex necessitate the court may, on plea, suggestion, motion, or ex mero motu,. where the defect of jurisdiction is apparent, stop the proceeding.’ ” Burgess v. Gibbs, 262 N.C. 462, 137 S.E. 2d 806.

G.S. 115-27 provides: “The board of education of each county . . . shall be a body corporate . . . capable of . . . prosecuting and defending suits for or against the corporation.” See Fields v. Board of Education, 251 N.C. 699, 111 S.E. 2d 910. G.S. 115-70 provides: “The county board of education . . . shall elect and appoint school committees for each of the several districts in their counties.” G.S. 115-69 [512]*512through 73 fixes the qualification and duties of school committees. The law does not give a committee corporate status; neither does it authorize a committee to sue or defend. These important functions are assigned to the county and city boards of education.

Sound reason exists for failure of the Legislature to give school committees corporate status with the right to sue and defend in the courts. In fact, committees are not given final authority. Their acts are under, subordinate to, and controlled by, the county or city boards. “County and city boards of education, subject to any paramount powers vested by law in the State Board of Education or any other authorized agency shall have general control and supervision of all matters pertaining to the public schools in their respective administrative units; they shall execute jfche school laws in their units.” G.S. 115-27. School committees are not given the right to sue. That right does not arise by necessary implication from any duties assigned to them. We are forced to conclude, therefore, that the plaintiffs did not have the legal capacity to institute this action. For that reason we do not discuss any other questions but remand the cause to the Superior Court of Robeson County for the entry of judgment dismissing the action.

Remanded with direction.

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Bluebook (online)

139 S.E.2d 737, 263 N.C. 510, 1965 N.C. LEXIS 1318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/revels-v-oxendine-nc-1965.

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