Town of Fuquay Springs v. Rowland

79 S.E.2d 774, 239 N.C. 299, 1954 N.C. LEXIS 364

• Court: Supreme Court of North Carolina
• Decided: January 15, 1954
• Docket: 462
• Status: Published

Opinion

Barnhill, J.

Defendant Rowland fails to assign as error tbe order overruling bis demurrer or to bring tbe exception forward and discuss tbe same in bis brief. Even so, in tbe light of our conclusion herein, this is immaterial.

A judge of a court of this State is not subject to civil action for errors committed in tbe discharge of bis official duties. Consequently no cause of action is stated against defendant Rowland, and as to him tbe action is dismissed ex mero motu.

“When . . . tbe complaint fails to state a cause of action, that is a defect upon tbe face of tbe record proper, of which tbe Supreme Court on appeal will take notice, and when such defects appear tbe Court will ex mero motu dismiss the action.” Denny, J., in Hopkins v. Barnhardt, 223 N.C. 617, 27 S.E. 2d 644, and cases cited; S. v. Ivey, 230 N.C. 172, 52 S.E. 2d 346; Dare County v. Mater, 235 N.C. 179, 69 S.E. 2d 244; Aiken v. Sanderford, 236 N.C. 760, 73 S.E. 2d 911.

While we concede that tbe Declaratory Judgment Act, Gr.S. cb. 1, art. 26, is comprehensive in scope and purpose, it does not, and was not intended to, embrace an action such as this. We cannot perceive that tbe Legislature, in enacting that statute, intended to vest in the Superior Courts of tbe State tbe general power to oversee, supervise, direct, or instruct officials of inferior courts in the discharge of their official duties.

Tbe defendant Council did not appeal. Even so, be is an official of tbe court. If be fails to collect and account for moneys rightfully belonging to plaintiff, or taxes items of cost which should not be taxed, or fails to tax items which should be taxed, tbe law provides an adequate and expeditious remedy in behalf of those who have tbe right to raise the issue in any of these particulars.

TJnder tbe circumstances it is unnecessary for us to discuss errors in tbe judgment in respect to certain items of cost.

The appeals are dismissed and tbe cause is remanded with direction that it be dismissed from tbe docket.

Appeals dismissed.