Hill v. Stansbury, s. 668, 670, 669.

• Docket Nº: Nos. 668, 670, 669.
• Citation: 20 S.E.2d 308, 221 N.C. 339
• Case Date: May 20, 1942
• Court: United States State Supreme Court of North Carolina

20 S.E.2d 308
221 N.C. 339

HILL et al.
v.
STANSBURY et al. (two cases).
SAME.
v.
GUILFORD COUNTY et al.

Nos. 668, 670, 669.

Supreme Court of North Carolina.

May 20, 1942.

Appeal from Superior Court, Guilford County; Wilson Warlick, Judge.

Action by Thomas J. Hill and others, citizens and taxpayers for and on behalf of Guilford County, against George L. Stansbury and others, and against Guilford County and others, and against George L. Stansbury and others, for recovery of money which was allegedly unlawfully expended by defendants, and for injunction against allegedly wrongful and ultra vires acts of the defendants. From orders denying motions to strike various

[20 S.E.2d 309]

items from the complaint, the defendants appeal.

Orders affirmed.

B. L. Fentress, D. Newton Farnell, Jr., Clifford Frazier, and King & King, all of Greensboro, for defendants, appellants.

York & Boyd, L. P. McLendon, and Andrew Joyner, Jr., all of Greensboro, for plaintiffs, appellees.

SEAWELL, Justice.

The cases above numbered are all here on appeals of defendants from a denial, in part, of motions to strike from the complaint various items, ranging from whole paragraphs to fragmentary expressions, and even single words. The motions were made under C.S. § 537, before answer or demurrer, and before any extension of time to plead was granted. The motions were made upon the theory that the matter objected to is irrelevant and prejudicial.

The cases were argued together in this Court, and for convenience, are so considered in the opinion.

All three of the cases are based on the commission of allegedly ultra vires acts on the part of the defendants, County Commissioners of Guilford County, and alleged misconduct in office of the said Commissioners and other officials named as defendants. The acts complained of consisted of the expenditure of large sums of money by the Commissioners without authority of law, of unauthorized commitments, appropriations, and other transactions involving loss to the public treasury and detriment to the taxpayers. Of some of the defendants involved, it is alleged that they received substantial sums by way of salary, per diem and expenses, to which they were not entitled by law and which constituted a part of the unlawful expenditures.

Two of the cases, Nos. 668 and 670, are for the recovery of money so unlawfully expended, the Commissioners allegedly having refused to take action in the matter. In No. 669, the plaintiffs, representing themselves to be taxpayers who, with others like situated, are likely to receive injury by the ultra vires acts of the defendant public officers in unlawful expenditure of the public funds and unauthorized transactions involving a large amount of money, have joined as defendants the County of Guilford, the members of the Board of County Commissioners, the County Treasurer, and the County Accountant. Plaintiffs seek an injunction against the allegedly wrongful and ultra vires acts.

The items to which defendants object are more than sixty in number. It is not only unnecessary but inexpedient to deal with them in detail. But, in view of the difference of opinion expressed on the point by opposing counsel, it might be best to begin by clarifying the principle on which appeals of this nature are reviewed here.

Some doubt has been expressed whether an order denying a motion to strike under C.S. § 537 is immediately appealable. The question hinges upon whether such an order affects a substantial right of the disappointed movant. C. S. § 638. Otherwise, it would be his privilege, if he so...