Newman Mach. Co. v. Newman, 6818SC338

• Decision Date: 09 October 1968
• Docket Number: No. 6818SC338,6818SC338
• Citation: Newman Mach. Co. v. Newman, 163 S.E.2d 279, 2 N.C.App. 491 (N.C. App. 1968)
• Parties: NEWMAN MACHINE COMPANY, Inc. v. George F. NEWMAN, Jr., Trustee.
• Court: North Carolina Court of Appeals

Page 279

163 S.E.2d 279

2 N.C.App. 491

NEWMAN MACHINE COMPANY, Inc. v.George F. NEWMAN, Jr., Trustee.

No. 6818SC338.

Court of Appeals of North Carolina.

Oct. 9, 1968.

Certiorari Allowed Nov. 26, 1968.

Adams, Kleemeier, Hagan & Hannah, by Charles T. Hagan, Jr., and Smith, Moore, Smith, Schell & Hunter, by McNeill Smith, Greensboro, for plaintiff.

McLendon, Brim, Brooks, Pierce & Daniels, by Hubert Humphrey, Greensboro, for defendant.

MALLARD, Chief Judge.

Defendant asserts in his brief that the question presented by this record is: 'Did the Court below err in overruling the Demurrer based upon the grounds that the complaint does not state a proper action for removing a cloud on title or for declaratory relief and that there is a defect of parties?'

We are of the opinion and so decide that the complaint does not allege a cause of action for removing a cloud on title to personal property.See decision in the companion case, William M. York, Jr., and Frank W. York v. George F. Newman, Jr., Trustee, filed by this Court on 9 October 1968 for a discussion of what constitutes a cloud on title to real property.

We are of the opinion and so decide that the complaint is not sufficient to allege a cause of action under the Uniform Declaratory Judgment Act.

G.S. § 1--253 reads as follows:

'Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed.No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for.The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree.'

This statute is broad in its terms, but it has been consistently held that under it, the court will not entertain a proceeding which lacks the essentials of an actual controversy.The presence of a genuine controversy is a jurisdictional necessity.Lide v. Mears, 231 N.C. 111, 56 S.E.2d 404.In Town of Tryon v. Duke Power Co., 222 N.C. 200, 22 S.E.2d 450, it is said:

'In marginal cases the rule may be difficult to apply, because it involves a definition, or at least an appraisal, of the term 'controversy,' which must, perhaps, depend upon the individual case; but in the case at bar, the Court does not feel that such embarrassment exists.A mere difference of opinion between the parties as to whether plaintiff has the right to purchase or condemn, or otherwise acquire the utilities of the defendant, without any practical bearing on any contemplated action, does not constitute a controversy within the meaning of the cited cases.'

In 22 Am.Jur.2d, Declaratory Judgments, § 11, appears the following principle of law: 'To constitute an actual controversy there need not exist an actual right of action in one party against the other in which consequential relief might be granted.But a Mere fear or apprehension that a claim may be asserted in the future is not ground for issuing a declaratory judgment; before granting such relief, the court Must be convinced that litigation sooner or later appears to be unavoidable.Consequently, where it appears that the facts alleged disclose that either the statute of limitations or the doctrine of laches is applicable thereto, there is no justiciable controversy as contemplated by the Declaratory Judgments Act.'(Emphasis added.)

In an Annotation in 12 A.L.R. 52, 74, there appears the following:

'In North Eastern Marine Engineering Co. v. Leeds Forge Co.(1906)1 Ch. 324, 94 L.T.N.S. 56, 75L. J.Ch.N.S. 178, 54 Week Rep. 370, 22 Times L.R. 178, it is held that a declaration will not be made to the effect that the plaintiffs have a good ground of defense if the defendant should sue them for damages for the infringement of a certain patent.The court said that the mere fact that A. is supposed to...