English v. Brigman

• Decision Date: 19 September 1945
• Docket Number: 90
• Citation: 35 S.E.2d 173,225 N.C. 402
• Parties: ENGLISH v. BRIGMAN et al.
• Court: North Carolina Supreme Court

35 S.E.2d 173

225 N.C. 402

ENGLISH v. BRIGMAN et al.

No. 90

Supreme Court of North Carolina

September 19, 1945

From the records submitted on this appeal, we summarize the pertinent facts:

On September 6, 1943, Clyde M. Roberts, then Clerk of the Superior Court of Madison County, and anticipating military service, and acting under Chapter 121, Public Laws of 1941 applied to the Commissioners of that County for leave of absence for the duration of the war or until released from service. Immediately thereupon, under authority of the statute, the County Commissioners granted the leave and appointed the plaintiff, Fred English, acting or substitute Clerk, and he entered upon the discharge of the duties of the office. Upon induction into the Service, Roberts became an Officer in the United States Navy, taking the prescribed oath of office. Thereafter the defendants brought a proceeding the purpose of which was to oust the present plaintiff English from office. During the controversy the Resident Judge, Honorable Zeb V. Nettles, declared a vacancy to exist in the disputed office, and, acting under the supposed authority of the Constitution, Art. IV, Sec. 29, appointed J Robert Johnson to fill the vacancy.

It further appears that no person was elected to fill the office at the general election in November 1944.

In the proceeding referred to, the present defendants asked that the incumbent English be restrained from exercising any of the duties of the office, and he was accordingly enjoined therefrom. Subsequently, at the instance of the defendants, it was made to appear that English had, in violation of the order, refused to vacate the office and continued to exercise its functions. English was thereupon adjudged to be in contempt of court and was incarcerated in the common jail of Buncombe County, whence he was subsequently released upon order of Judge Nettles. The proceeding instituted by defendants terminated by voluntary nonsuit, leaving English in the actual possession of the office.

The plaintiff, English, thereupon issued the summons in this action, brought in his own behalf, and filed his complaint seeking to recover damages for an alleged conspiracy to deprive him of his office, in the prosecution of which, he complains, the defendants procured his unlawful imprisonment. The defendants, under a special appearance, moved to dismiss the action for want of jurisdiction, basing the motion upon the ground that English, at the time he issued the summons was not Clerk of the Court in which the action was brought, and that the attempted...