Moreland v. Wamboldt

• Decision Date: 20 March 1935
• Docket Number: 92.
• Citation: 179 S.E. 9,208 N.C. 35
• Parties: MORELAND v. WAMBOLDT, Mayor, et al. (TURNER et al., Interveners).
• Court: North Carolina Supreme Court

179 S.E. 9

208 N.C. 35

MORELAND v. WAMBOLDT, Mayor, et al. (TURNER et al., Interveners).

No. 92.

Supreme Court of North Carolina

March 20, 1935

Appeal from Superior Court, Buncombe County; Finley, Judge.

Mandamus by W. C. Moreland against Wickes Wamboldt, Mayor and Councilman of the City of Asheville, and others, wherein F A. Turner and others were permitted to intervene. From an adverse judgment, interveners appeal.

Reversed.

J Scroop Styles and James S. Styles, both of Asheville, for plaintiff.

C. E Blackstock, of Asheville, for defendants.

Joseph L. Auten, of Asheville, for interveners.

SCHENCK Justice.

This was a civil action wherein the plaintiff, W. C. Moreland, sought to have a writ of mandamus issue to the mayor and councilmen of the city of Asheville directing them to proceed in accord with section 83, article 12, chapter 121, Private Laws 1931 (charter of the city of Asheville), to call an election upon a proposed ordinance relative to water rates and meter rents, petitioned for by the number of voters required by the statute.

On the 14th day of November, 1934, Judge Finley found "that the petition and ordinance set forth in the complaint was in all respects in full compliance with the requirements of the charter," and ordered the council of the city of Asheville to call an election upon the proposed ordinance within 45 days, as provided by the charter. Later, on motion of the plaintiff, without finding any facts and without being requested to find any facts, Judge Finley struck out his former judgment and entered in lieu thereof a judgment directing the council of the city of Asheville to adopt the proposed ordinance. This judgment was dated December 11, 1934, but was not filed until December 21, 1934, being, by consent, signed out of term and out of the district.

On December 21, 1934, Judge Pless, upon motion theretofore filed by the interveners on December 20, 1934, and after due notice to the plaintiff and defendants, and after finding that they were property owners and taxpayers in the city of Asheville and were proper parties to the action, allowed said interveners, namely, F. A. Turner, John S. Suddreth, and A. F. McGraw, to become parties defendant for the purpose of appealing from the last judgment of Judge Finley. From this order there was no appeal.

By virtue of the authority conferred by the order of Judge Pless, the interveners appealed to the Supreme Court from the judgments of Judge Finley, making three assignments of error, as follows: (1) The finding in the judgment of November 14, 1934, that "the petition and ordinance set forth in the complaint was in all respects in full compliance with the requirements of the charter"; (2) "the signing of the judgment of November 14, 1934"; and (3) "the signing of the judgment of December 11, 1934."

The first and second assignments of error cannot avail the appellants since the judgment of November 14, 1934, to which they relate, was "cancelled and nullified," and the judgment of December 11, 1934, "entered in lieu thereof."

There is left for consideration only the third assignment of error which is to "the signing of the judgment of December 11 1934." Conceding, but not deciding, that an ordinance such as that proposed was embraced within the intent of the statute, the judgment, in the absence of any exception to the findings of fact or to the failure to find facts, should be affirmed, Henderson v. Hardware Co., 204 N.C....