State Ex Rel. Hines v. Vann

Supreme Court of North Carolina

State Ex Rel. Hines v. Vann

23 S.E. 932, 118 N.C. 3

CourtSupreme Court of North Carolina

DecidedFebruary 5, 1896

StatusPublished

Cited by12 cases

This text of 23 S.E. 932 (State Ex Rel. Hines v. Vann) 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

State Ex Rel. Hines v. Vann, 23 S.E. 932, 118 N.C. 3 (N.C. 1896).

Pincite

Opinion

Clark, J.:

Every action must be prosecuted by the party in interest. The Code, Sec. 177. In Foard v. Hall, 111 N. C., 369, it was held that in a quo warranto to test the right of an incumbent to hold office, it is not necessary that the relator should be a contestant for the office, but that it is sufficient if he is an inhabitant and tax-payer of the jurisdiction over which the officer- exercises his duties and power. It is not alleged in the complaint in the present action that the relator is a citizen and tax-payer of the county of which the defendant is treasurer and it does not appear that he has any other interest which authorizes him to maintain this action.

It does not appear from the leave granted by the Attorney General to bring the action that he found that the relator was a citizen and tax-payer of the county of Chowan, but, if he had done so, this would not have cured the defect of jurisdiction, for the cause of action and the right of the plaintiff* to maintain it must appear upon the face of the complaint. So true is this that exception on those two grounds — and those only — may be made in the Supreme Court when not made below. Rules of Court, 27. Had the point been raised and passed upon by the Attorney General that the relator was, or was not, a citizen and tax-payer of the county no exception could be taken for review in this Court. The defendant was entitled to have the allegation showing the relator’s interest which would entitle him to maintain the action set out in the complaint so that, by proper denial or demurrer, the defendant could have the fact found by the jury or the ruling on the law reviewed by appeal. The relator is the real party plaintiff and the courts have never gone to the *7 extent of permitting bim to maintain an action in which he has no interest. Warrenton v. Arrington, 101 N. C., 109. The case of Baruch v. Long, 117 N. C., 509, relied on by appellant, has no bearing, for there the plaintiff’s interest appeared and he could have sued even if a non-resident of the State, Thompson v. Tel. Co., 107 N. C., 449, and the objection to the venue (unlike the plaintiff’s want of interest in the action) was waived because not made in apt time. Code, Sec. 195.

It not appearing that the plaintiff relator had any interest which would authorize him to bring this action, the motion to dismiss made in this Court must be allowed. Nicholson v. Commrs. of Dare, at this Term. Indeed the Court could dismiss ex mero motu.' Hagins v. Railroad, 106 N. C., 537; Nash v. Ferrabow, 115 N. C., 303.

Action Dismissed.

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Clark, J.:

Every action must be prosecuted by the party in interest. The Code, Sec. 177. In Foard v. Hall, 111 N. C., 369, it was held that in a quo warranto to test the right of an incumbent to hold office, it is not necessary that the relator should be a contestant for the office, but that it is sufficient if he is an inhabitant and tax-payer of the jurisdiction over which the officer- exercises his duties and power. It is not alleged in the complaint in the present action that the relator is a citizen and tax-payer of the county of which the defendant is treasurer and it does not appear that he has any other interest which authorizes him to maintain this action.

It does not appear from the leave granted by the Attorney General to bring the action that he found that the relator was a citizen and tax-payer of the county of Chowan, but, if he had done so, this would not have cured the defect of jurisdiction, for the cause of action and the right of the plaintiff* to maintain it must appear upon the face of the complaint. So true is this that exception on those two grounds — and those only — may be made in the Supreme Court when not made below. Rules of Court, 27. Had the point been raised and passed upon by the Attorney General that the relator was, or was not, a citizen and tax-payer of the county no exception could be taken for review in this Court. The defendant was entitled to have the allegation showing the relator’s interest which would entitle him to maintain the action set out in the complaint so that, by proper denial or demurrer, the defendant could have the fact found by the jury or the ruling on the law reviewed by appeal. The relator is the real party plaintiff and the courts have never gone to the *7 extent of permitting bim to maintain an action in which he has no interest. Warrenton v. Arrington, 101 N. C., 109. The case of Baruch v. Long, 117 N. C., 509, relied on by appellant, has no bearing, for there the plaintiff’s interest appeared and he could have sued even if a non-resident of the State, Thompson v. Tel. Co., 107 N. C., 449, and the objection to the venue (unlike the plaintiff’s want of interest in the action) was waived because not made in apt time. Code, Sec. 195.

It not appearing that the plaintiff relator had any interest which would authorize him to bring this action, the motion to dismiss made in this Court must be allowed. Nicholson v. Commrs. of Dare, at this Term. Indeed the Court could dismiss ex mero motu.' Hagins v. Railroad, 106 N. C., 537; Nash v. Ferrabow, 115 N. C., 303.

Action Dismissed.

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Bluebook (online)

23 S.E. 932, 118 N.C. 3, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-hines-v-vann-nc-1896.

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