Comm'rs of Wake v. City of Raleigh

• Decision Date: 28 February 1883
• Citation: 88 N.C. 120
• Court: North Carolina Supreme Court
• Parties: COMMISSIONERS OF WAKE v. CITY OF RALEIGH.

88 N.C. 120

COMMISSIONERS OF WAKE

v.CITY OF RALEIGH.

Supreme Court of North Carolina.

February Term, 1883.

APPEAL from an order of reference made at June Term, 1882, of WAKE Superior Court, by MacRae, J.

Defendant appealed.

Messrs. Fowle & Snow and T. R. Purnell, for plaintiff .

Messrs. Reade, Busbee & Busbee, for defendant .

SMITH, C. J.

The object of the present action is the recovery of moneys alleged to belong to the plaintiffs, as a board of education for the county, collected and paid into the treasury of the city of Raleigh.

The complaint charges the fund claimed to have been derived from “the net proceeds of the sale of estrays and the clear proceeds of the penalties and forfeitures and fines for breaches of the penal laws of the state of North Carolina”--following the language of section four, article nine, of the amended constitution, which appropriates moneys received from these sources to the establishment and maintenance of free public schools.

The demurrer put in by the defendant assigns, among other causes, that the fund demanded was collected by the “defendant under and by virtue of its charter and the laws of the state,” and by its own proper officers, and that the defendant is entitled thereto.

The demurrer being overruled, the defendant answered, denying that any moneys described and appropriated in the clause of the constitution referred to, and to which the plaintiffs have a rightful claim, have been received by the defendant.

Upon the complaint and answer, but without an adjudication upon the issue of law made in the pleadings, and involving the preliminary question of the defendant's liability in the premises, at the instance of the plaintiff an order of reference was entered, directing a statement of “an account of the fines, penalties, forfeitures and estrays collected by the defendant from the sources mentioned in the complaint, and report to this court.”

The defendant appeals from this judgment, and our only inquiry is as to its regularity and correctness at this stage of the proceeding, and before the determination of the preliminary matter which may be decisive of the cause, and render any reference unnecessary.

There is an obvious irregularity in ordering a reference for an account, before disposing of a defence founded in law or in fact, and which if sustained puts an end to the action and renders an inquiry useless. The rule of practice in an orderly course of procedure is to have such defence first passed on and decided, as is explained in A. T. and O. Railroad v. Morrison, 82 N. C., 141, and again recognized in Neal v. Becknell, 85 N. C., 299.

The force of the decision is not impaired by the ruling in McPeters v. Ray, 85 N. C., 462, which is based upon the particular circumstances of the cause, and while the reference preceded the determination of the issue as to a partnership, it was made in express terms without prejudice as to the defence, and the existence of the partnership, conceded in the answer to a limited extent, was afterwards found by the jury. The irregularity, if such it be, was thus corrected and all the just rights of the defendant preserved.

The overruling of the demurrer is not a determination of the question of the defendant's liability for, and the plaintiff's right to the moneys derived from fines, forfeitures and penalties under...