Atkinson v. Greene, (No. 572.)
| Decision Date | 24 April 1929 |
| Docket Number | (No. 572.) |
| Citation | 147 S.E. 811 |
| Court | North Carolina Supreme Court |
| Parties | ATKINSON v. GREENE et al. |
Appeal from Superior Court, Buncombe County; H. Hoyle Sink, Special Judge.
Action by E. B. Atkinson on behalf of himself and others against E. C. Greene and others. From the judgment, defendants appeal. Affirmed.
George Pennell and Mark W. Brown, both of Asheville, and Carter & Carter, of Mount Airy, for appellants.
Marcus Erwin and Alfred S. Barnard, both of Asheville, for appellee.
The original summons was issued May 16, 1927, and served on all the defendants therein named on May 20, 1927. Among these defendants were John H. Cathey and Frank L. Conder, officers of the city, who constituted a majority of the city board of commissioners. Neither the city of Asheville nor the French Broad Cemetery Company was a party; but each of them was afterwards made a party defendant by an order of court. The summons against these two defendants was issued May 23, 1927, and served the day following. The date of its issuance was the day before Cathey and Conder retired from office—the day before they were succeeded, respectively, by Roberts and Rogers.
The plaintiff, suing on behalf of himself and other taxpayers, filed a complaint setting up two causes of action. His object was to vacate and set aside a deed conveying land to be used as a cemetery, executed on March 4, 1927, to the city of Asheville by the French Broad Cemetery Company. The gravamen of the action is fraud and collusion in effecting the sale between Cathey and Conder as officers of the city and the officers and stockholders of the cemetery company. For the purpose of barring the prosecution of the action, the defendants alleged that the summons was served on the city within the space of a few minutes after the oath had been administered to the officers succeeding Cathey and Conder, and that it was not served on the city while Cathey and Conder were in office. Upon these facts, the defendants submit the legal proposition that the action cannot be maintained, in the absence of an allegation in the complaint that the plaintiff had requested the governing body of the city to take such action as was necessary to vacate and cancel the deed, and that such action had not been taken. Whether such request was necessary is the question for decision. The controlling principle is enunciated in the authorities cited in Murphy v. Greensboro, 190 N. C. 268, 275, 129 S. E. 614. An allegation that...
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