Burton v. City of Reidsville

• Decision Date: 13 January 1956
• Docket Number: No. 666,666
• Citation: 243 N.C. 405,90 S.E.2d 700
• Parties: John H. BURTON and Earl Burton, Representing the citizens and taxpayers of the City of Reidsville, and such other taxpayers as shall ask to be made parties to this action (Original Parties Plaintiff); J. W. Amos, Mrs. C. E. Warner and Claude S. Burton (Additional Parties Plaintiff) v. The CITY OF REIDSVILLE; George Hunt, James L. Thompson, Sr., W. B. Pipkin, Clyde Cobb, and William G. Springs, In their capacity as members of the City Council of the City of Reidsville and also in their capacity as individuals.
• Court: North Carolina Supreme Court

Page 700

90 S.E.2d 700

243 N.C. 405

John H. BURTON and Earl Burton, Representing the citizens and taxpayers of the City of Reidsville, and such other taxpayers as shall ask to be made parties to this action (Original Parties Plaintiff); J. W. Amos, Mrs. C. E. Warner and Claude S. Burton (Additional Parties Plaintiff) v. The CITY OF REIDSVILLE; George Hunt, James L. Thompson, Sr. W. B. Pipkin, Clyde Cobb, and William G. Springs, In their capacity as members of the City Council of the City of Reidsville and also in their capacity as individuals.

No. 666

Supreme Court of North Carolina.

Jan. 13, 1956

Gwyn & Gwyn, Reidsville, for plaintiffs-appellants.

Brown, Scurry & McMichael, Reidsville, for defendants-appellees.

BARNHILL, Chief Justice.

This proceeding became so entangled in a snarl of procedure in the court below that no course is left open to us except to vacate the judgment entered and remand the cause for hearing in accord with the applicable principles of law.

As the record now stands, we have a judgment dismissing the action and, at the same time, affirmatively adjudicating the rights of the parties 'if the pleadings and evidence present a question of fact for the Court.' But the court did not decide whether the pleadings and evidence present an issue of fact for a jury or a question of fact for the court. Thus we have a conditional judgment on the merits after the cause had been dismissed for the reason plaintiffs had offered no evidence of sufficient probative force to be submitted to a jury. We cannot either affirm or reverse the judgment without leaving a false impression as to what we have decided.

When the court allowed the motion to dismiss as in case of nonsuit, it thereby terminated the action, and no suit was thereafter pending in which the court could make a valid order.

As we stated in Bourne v. Southern R. R. Co., 224 N.C. 444, 31 S.E.2d 382, 383:

"Nonsuit' is a process of legal mechanics. The case is chopped off. Corcoran v. Merchants' & Miners' Transportation Co., 1 Ga.App. 741, 57 S.E. 962. It is a judgment of dismissal. Anderson v. Asphalt Distributing Co., Mo.Sup., 55 S.W.2d 688, 86 A.L.R. 1033. It dismisses the action. Cyclopedic Law Dict., 2d Ed. (Callaghan). Although it does not necessarily decide the merits of the cause of action, it is a final judgment in that it terminates the action itself.

"Nonsuit is the name of a judgment given against the plaintiff when he is unable to prove a case * * * .' Cooper v. Crisco, 201 N.C. 739, 161 S.E. 310, 312. ' A nonsuit is but like the blowing out of a candle, which a man at his own pleasure may light again.' Hickory v. Southern R. R. Co., 138 N.C. 311, 50 S.E. 683, 685. * * *

'It cannot put its adversary out of court and at the same time retain the cause in court. Morse v. Turner, 20 Ga.App. 108, 92 S.E. 767. * * *'

The disposition of the apartment houses described in the complaint, situated as they are on the land of others who demand one-half of the rents, rests within the sound discretion of the defendant members of the Council of the City of Reidsville. In re Housing Authority, 235 N.C. 463, 70 S.E.2d 500; Pue v. Hood, 222 N.C. 310, 22 S.E.2d 896; Mullen v. Louisburg, 225 N.C. 53, 33 S.E.2d 484; 37 Am.Jur. 731, § 117. And discretion in a legal sense means the power of free decision; undirected choice; the authority to choose between alternative courses of action. Webster, New Int. Dict., 2nd ed.; Callaghan, Cyc.Law Dict., 2nd ed.

The acts of administrative or executive officers are not to be set at nought by recourse to the courts. Nor are courts charged with the duty or vested with the authority to supervise administrative and executive agencies of our government. However, a court of competent jurisdiction may determine in a proper proceeding whether a public official has acted capriciously or arbitrarily or in bad faith or in disregard of the law. Pue v. Hood, supra. And it may compel action in good faith in accord with the law. But when the jurisdiction of a court is properly invoked to review the action of a...