This
is a special proceeding brought by petitioner, instituted
before the Clerk of the Superior Court of Wake County, N. C.
by plaintiff, a municipal corporation, against the
defendants, T. E. Hatcher and wife Mabel Stone Hatcher, who
own in fee simple title to certain lots in the City of
Raleigh, N. C., and others who have an interest in the same
to condemn said lots for street purposes.
The
defendants filed answers. In the answer of T. E. Hatcher and
Mabel Stone Hatcher, is the following: "Answering
paragraph 10, these defendants admit that the plaintiff is
unable to acquire title to the property of these defendants
without resorting to condemnation proceedings. It is denied
that these defendants are unwilling to sell their property to
the plaintiff, provided plaintiff pays to these defendants
its present fair value. *** That the plaintiff, the City of
Raleigh, has been unable to acquire title to the property of
these defendants for the sole reason that it is unwilling to
pay the defendants its present fair value. Wherefore, having
fully answered petition filed herein, these defendants pray
the Court in the event condemnation of their property is
ordered that they be paid its present value and that the
costs in this action be taxed against the
plaintiff."
John
Norwood and American Oil Company in their answer say, in
part: "That these defendants do not have sufficient
knowledge or information to form a belief as to the
allegations of paragraph 7 of the complaint, and, therefore
deny the same; and in this connection the defendants allege
that, as affirmatively appears from the resolution, Exhibits
A and B, and from the allegations of paragraph 7 itself, the
plaintiff is seeking to condemn certain property not for its
own purposes but for those of the State Highway Commission
and that therefore, the plaintiff does not have a right to
proceed under C.S. 2791; and that, furthermore, even if the
plaintiff would have a right to proceed, it affirmatively
appears from the complaint that the plaintiff has failed to
follow the provisions of law relating to condemnation. ***
That the defendant, John Norwood, is the agent of American
Oil Company in Wake
County and that said station has a value to
this defendant, over and above the profits made thereat,
since the station is well located and is an advertisement and
a creator of good will for other business of this defendant
in Wake County; that by reason of the facts hereinabove set
forth, the interest of this defendant in said property (even
leaving out of account the good will and advertising value)
has a present market value of at least the sum of $6,000.00,
and that the value of this defendant's interest to this
defendant himself (because of the advertising and good will
value) is at least the sum of $8,000.00. *** Wherefore, these
defendants pray: 1. That this proceeding be dismissed at the
cost of plaintiff. 2. That if the proceeding be not
dismissed, the plaintiff be required to pay the defendant,
John Norwood, the value of his interest in the property
described in paragraph 3 of the complaint. 3. That the
interest of the defendant, John Norwood, in said property be
fixed at at least the sum of $6,000.00 and that the
defendant, John Norwood, recover said amount from plaintiff.
4. That, if the defendant, John Norwood, be not permitted to
recover from the plaintiff, then said defendant, John
Norwood, recover from the defendants, T. E. Hatcher and wife,
Mable Stone Hatcher, the sum of $8,000.00, and that said
recovery be a lien upon such compensation as the city may be
required to pay for said property." For an understanding
of the case the answers need not be set forth in full.
The
petitioner presented an order to condemn said land before the
Clerk of the Superior Court of Wake County, N. C., who
refused to sign same, whereupon the petitioner excepted and
appealed to the Superior Court.
The
Order of the Court below is as follows: "This cause
coming on to be heard and having been heard on appeal from
the Clerk of the Superior Court before His Honor, C. E.
Thompson, Judge Presiding, and it appearing to the Court that
the respondents and all of them having filed answers, and
that the respondents, John Norwood and American Oil Company,
demurred to the petitioner's petition as fully set out in
the seventh paragraph of their Answer; that the respondents,
T. E. Hatcher and Mabel Stone Hatcher, by and through their
attorney, demurred ore tenus at the hearing on the ground
that the petition filed did not state a cause of action; and
the Court being of the opinion that the petition filed herein
states a cause of action: Now, Therefore, It is Ordered,
Adjudged and Decreed that the demurrer of the respondents be,
and the same is hereby overruled and dismissed; and It Is
Further Ordered that said proceedings be remanded to the
Clerk of the Superior Court, and that he be, and he is hereby
ordered to proceed therewith as provided by law. This 25th
day of September, 1941. C. E. Thompson, Judge
Presiding."
To
the foregoing Order overruling demurrers of the respondents
and remanding the cause to the Clerk of the Superior Court,
the respondents, T. E. Hatcher and wife, Mabel Stone Hatcher,
John Norwood and American Oil Company, excepted, assigned
error and appealed to the Supreme Court. The other material
matters will be set forth in the opinion.
Wilbur
H. Royster, of Raleigh, for petitioner City of
Raleigh.
T.
Lacy Williams, of Raleigh, for respondents, T. E. and Mabel
Stone Hatcher.
Royall,
Gosney & Smith, of Raleigh, for respondents John Norwood
and American Oil Co.
CLARKSON
Justice.
The
question involved: Did His Honor err in overruling
respondents' demurrers ore tenus to petitioner's
petition for failure to state a cause of action? We think
not.
N.C.Code,
1939 (Michie), § 511 is as follows: "The defendant may
demur to the complaint when it appears upon the face thereof,
either that: *** 6. The complaint does not state facts
sufficient to constitute a cause of action."
Section
518: "If objection is not taken either by demurrer or
answer the defendant waives the same, except the objections
to the jurisdiction of the court and that the complaint does
not state facts sufficient to constitute a cause of
action."
As to
the two exceptions mentioned in this section there can be no
waiver, and objections may be made at any time. Johnson
v. Finch, 93 N.C. 205, 208; Halstead v. Mullen,
93 N.C. 252, 255; Gurganus v. McLawhorn, 212 N.C.
397, 193 S.E. 844. The want of jurisdiction and the failure
of the complaint to state facts sufficient to constitute a
cause of action cannot be waived and may be taken advantage
of at any time even in the Supreme Court. This
can be done by demurrer, in writing or ore tenus. Tucker
v. Baker, 86 N.C. 1; Clements v. Rogers, 91
N.C. 63, 64; Hunter v. Yarborough, 92 N.C. 68, 70;
Knowles v. Norfolk, etc., R. Co., 102 N.C. 59, 62, 9
S.E. 7.
The
petitioner contends that respondents demur solely "upon
the ground that it affirmatively appears upon the face of the
petition that the State Highway Commission and not the City
of Raleigh is the proper plaintiff, for that the plaintiff in
paragraph No. 7 of its Petition deems it necessary 'to
widen U. S. Highway #64 to the City Limits of Raleigh from
the junction of Tarboro Street and U. S. Highway #64 to the
City Limits,' and no where in petitioner's petition
does it allege that it brings this condemnation proceeding to
widen a street; and respondents further demur on the grounds
that the City Ordinance or Resolution, adopted October 9,
1940, made 'Exhibit A' of petitioner's petition,
no where sets out that U. S. Highway #64 is a Street in the
City of Raleigh, and the City has no right to widen an United
States Highway or State Highway under the power of Eminent
Domain."
The
petition sets forth: "7. That pursuant to the powers
granted municipalities, Public Laws of 1917, Chapter 136
Sub-Chapter 4, § 1 (C.S. § 2791), corporate plaintiff deeming
it necessary and for the best interest of the public to widen
U. S. Highway No. 64 within the City limits of Raleigh from
the junction of Tarboro Street and U. S. Highway No. 64...
