Gatling v. Comm'rs of Carteret County

• Decision Date: 28 February 1885
• Court: North Carolina Supreme Court
• Parties: JOHN GATLING v. THE COMMISSIONERS OF CARTERET COUNTY.

92 N.C. 536

53 Am.Rep. 432

JOHN GATLING

v.THE COMMISSIONERS OF CARTERET COUNTY.

Supreme Court of North Carolina.

February Term, 1885.

MOTION to continue an injunction to the hearing, heard by Shepherd, Judge, at Spring Term, 1884, of CARTERET Superior Court.

His Honor refused to continue the restraining order theretofore granted and dismissed the action, and the plaintiff appealed.

Mr. John Gatling, for the plaintiff .

Messrs. Simmons & Manly for the defendants .

ASHE, J.

This was a civil action brought by the plaintiff against the defendants as commissioners of Carteret county, to have a debt due to him by the county set off against certain taxes assessed against him by the commissioners for the years 1882 and 1883, and for an injunction against the defendants, to restrain them from collecting said taxes.

The plaintiff in his complaint alleged that the county of Carteret was indebted to him in the sum of eight thousand dollars, evidenced by two judgments against the board of commissioners of said county, each for the sum of four thousand dollars, founded upon bonds issued by the board of commissioners of said county under the provisions of an act of the General Assembly of the State of North Carolina, entitled “An act to incorporate the North Carolina Railroad Company and the North Carolina and Western Railroad Company,” ratified the 27th of December, 1852, whereby the said county and its properly constituted authorities became bound to levy annually on the persons, lands, and other property within said county, and collect, such taxes as may be sufficient to pay such bonds and interest. That the judgments are still due and owing, no part thereof having been paid, and that payment has often been demanded; that the plaintiff has property situated at Morehead City in the county of Carteret which has been assessed for taxes for two years, 1882 and 1883, both for State and county purposes, and the tax lists have been placed in the hands of the sheriff of said county for collection; that he has paid all of the taxes due for those years, except the general tax for county purposes, so far as they have come to his knowledge; that he is entitled in equity and good conscience to have the said indebtedness of the county to him declared a set-off or counter-claim pro tanto against said residue of taxes, and he prayed for such application and for a restraining order enjoining the defendants from collecting such residue.

The defendants answered the complaint, admitting some of the allegations thereof and denying others.

The plaintiff then moved for a restraining order founded upon an affidavit, varying but little from the allegations in his complaint, and the defendants filed a counter-affidavit similar to their answer.

On the 28th day of March, 1884, His Honor A. C. Avery, at Chambers, granted the restraining order as prayed for, to be heard before His Honor J. E. Shepherd, and it having been agreed between the counsel of both parties that His Honor should try the cause upon the facts found by him, and the complaint and answer, His Honor found the facts substantially as stated in the affidavit of the plaintiff, and adjudged that the plaintiff was not entitled to the relief demanded, and that the action be dismissed and the defendant to recover his costs to be taxed by the clerk.

The sole question presented for our determination is, whether the plaintiff can set up the judgments which he has against the county, as a set-off or counter-claim against the taxes admitted by him to be due to the county for the years 1882 and 1883.

The position taken by the plaintiff in seeking to set off the debt due him from the county of Carteret against the taxes assessed by the county authorities upon his property situated in that county, cannot be sustained upon any principle of law or equity.

It is certainly an action of the first impression. Matter which is purely defensive in its character, and is only allowed as a defence to an action, is sought to be used as the gravamen of an action. As a counter-claim it cannot avail the plaintiff, for that is in the nature of a cross action, and must be a cause of action existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had. The Code, §244.

There is no rule of practice or procedure, known even to the loose pleading tolerated by the Code System, which allows a plaintiff to set up a counter-claim against a defendant--such an action is an anomaly in legal proceedings.

The same observations apply with equal appositeness to a set-off, which, like the counter-claim, is a defence to the action, and only exists where the demand, as well of the plaintiff as of the defendant, is a debt, such a demand as under the old practice could only be recovered by an action of debt or ...