Hill v. Stansbury

• Decision Date: 20 May 1942
• Docket Number: 668,670,669.
• Citation: 20 S.E.2d 308,221 N.C. 339
• Parties: HILL et al. v. STANSBURY et al. (two cases). SAME v. GUILFORD COUNTY et al.
• Court: North Carolina Supreme Court

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

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 desired, to note an exception and proceed with the trial; but it is apparent that if his relief is confined to a further objection when evidence is offered, he gets nothing which he would not have gotten without making a motion; whereas, the statute intends to give him something and to give it to him in time to be of service. Even the common law gave such protection to defending litigants and conserved the dignity and economy of court proceedings by confining the proceeding to justiciable issues. McIntosh, N.C.Practice and Procedure p. 378.

However this may be, the established practice authorizes the appeal. Tar Heel Hosiery Mill v. Durham Hosiery Mills, 198 N.C. 596, 152 S.E. 794; Ellis v. Ellis, 198 N.C. 767, 153 S.E. 449; Herndon v. Massey, 217 N.C. 610, 8 S.E.2d 914; Scott v. Bryan, 210 N.C. 478, 187 S.E. 756.

Conceding the appealability of the order, it is contended by the plaintiffs that the matter rests entirely within the discretion of the Court and that it is its policy to refrain from the exercise of its power under the statute as a court of review, citing Pemberton v. Greensboro, 203 N.C. 514, 166 S.E. 396; Pemberton v. Greensboro, 205 N.C. 599, 172 S.E. 196; Hardy v. Dahl, 209 N.C. 746, 184 S.E. 480; Scott v. Bryan, 210 N.C. 478, 187 S.E. 756; Poovey v. Hickory, 210 N.C. 630, 188 S.E. 78, and N.C.L.Rev., V. 19, p. 55. The emphasis is placed on the indisposition of the Court to "chart the course of the trial below"; but we find nothing in these cases to indicate that the Court has consciously created a rule which would return to the Superior Court a burden which under the statute properly rests upon it, so that the lower court may be forced to deal with its own appeal indirectly. But where the allegation is clearly irrelevant and may work harm to the movant, this Court has never said that it would not in a proper case give the relief denied in the court below in advance of his resort to his second line of defense, objection to the evidence. We understand the expressions used by the Court in these cases to be precautionary and expressive of the danger of putting the lower court in trammels upon a doubtful matter, when the case is factually developed on trial, the propriety of a challenged pleading might be vindicated, or its impropriety more clearly established. That attitude is fully justified by the obligation which rests upon us under the Code practice to treat the pleadings...