State ex rel. Glamorgan Pipe & Foundry Co. v. Benfield

145 S.E.2d 912, 266 N.C. 342, 1966 N.C. LEXIS 1340

• Court: Supreme Court of North Carolina
• Decided: January 14, 1966
• Status: Published

Opinion

Bobbitt, J.

G.S. 55-154, in pertinent part, provides: “(a) No foréign corporation transacting business in this State without permission obtained through a certificate of authority under this chapter or through domestication under prior acts shall be permitted to maintain any action or proceeding in any court of this State unless such corporation shall have obtained a certificate of authority prior to trial; ... An issue arising under this subsection must be raised by motion and determined by the trial judge prior to trial.”

The issue raised by defendants’ motions to dismiss should have been determined by the trial judge prior to trial. These motions challenged the authority of the court to proceed with a trial of the cause on its merits.

What is denominated “Finding of Fact” No. 3 is actually a conclusion of law, not a finding of fact. Mills, Inc. v. Transit Co., 265 N.C. 61, 73, 143 S.E. 2d 235. Under authority of the cited case, which was decided July 23, 1965, defendants confess error and concede the cause must be remanded for specific findings as to facts pertinent to whether plaintiff “has transacted business in the State of North Carolina.” Defendants are well advised.

Absent specific findings of fact supported by evidence and justifying the conclusion of law embodied in “Finding of Fact” No. 3, the judgment of the court below is erroneous and is therefore vacated. The cause is remanded for a de novo hearing and determination of defendants’ said motions to dismiss in accordance with requirements stated herein.

There has been no determination of any of the issues raised by the pleadings relating to the merits of plaintiff’s cause of action.

Error and remanded.