Moreland v. Wamboldt, 92.

• Decision Date: 20 March 1935
• Docket Number: No. 92.,92.
• Court: North Carolina Supreme Court
• Parties: MORELAND. v. WAMBOLDT, Mayor, et al. (TURNER et al., Interveners).

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

[179 S.E. 10]

of the City of Asheville, and others, wherein P. 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.

SOHENCK, Justice.

This was a civil action wherein the plaintiff, W. C. Moreland, sought to have a writ of mandamus issue to the mayor and council-men 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 assign ments of...