Mitchell v. Barfield
| Decision Date | 09 June 1950 |
| Docket Number | No. 751,751 |
| Parties | MITCHELL et al. v. BARFIELD et al. |
| Court | North Carolina Supreme Court |
Fuller, Reade, Umstead & Fuller, Brawley & Brawley, and James L. Newsom, all of Durham, for plaintiffs-appellees.
Claude V. Jones and Marshall T. Spears, Durham, for defendants-appellants.
The findings of fact of the judge of the Superior Court had ample support in the evidence at the trial. In consequence, they must be accepted as final truth upon the appeal to the Supreme Court. Marshall v. Bank of Beaufort, 206 N.C. 466, 176 S.E. 314; First Nat. Pictures Distributing Corp. v. Sewell, 205 N.C. 359, 171 S.E. 354; Eley v. Atlantic Coast Line R. Co., 165 N.C. 78, 80 S.E. 1064.
In reaching this conclusion, we do not ignore the seven assignments of error based on the refusal of the judge to find facts in accordance with requests of the defendants. These assignments are untenable. When he passed on the requests for findings, the judge necessarily weighed the evidence in his capacity as trier of the facts, and his refusal was tantamount to an affirmative finding that the matters and things embodied in the requests for findings did not exist. 5 C.J.S., Appeal and Error, § 1656. Indeed, the requests for findings were diametrically opposed in the main to the findings of fact actually made by the judge.
The zoning ordinance of the City of Durham provides for the division of the municipality into nine different classes of districts or zones, and permits the construction and operation of hotels in all of such districts or zones.
The facts found by the trial judge show that the application of the plaintiffs for a permit to build a hotel upon their premises in an 'A Residence Zone' in the City of Durham meets all the requirements of applicable state and local laws and regulations relating to the construction of hotels. In fact, the defendants concede in their answer that prior to the commencement of this action the building inspector of the City of Durham, who is the administrative official charged with the enforcement of the zoning ordinance, examined the application of the plaintiffs for the building permit, and ascertained that it complied 'with the building and zoning regulations of the City of Durham.' These things being true, the plaintiffs had a clear legal right to the building permit sought by them, and the defendants had no discretionary power to withhold it. Kenney v. Building Commissioners of Melrose, 315 Mass. 291, 52 N.E.2d 683, 150 A.L.R. 490.
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