Ornoff v. City of Durham

• Decision Date: 05 June 1942
• Docket Number: 755.
• Citation: 20 S.E.2d 380,221 N.C. 457
• Parties: ORNOFF v. CITY OF DURHAM et al.
• Court: North Carolina Supreme Court

20 S.E.2d 380

221 N.C. 457

ORNOFF v. CITY OF DURHAM et al.

No. 755.

Supreme Court of North Carolina

June 5, 1942

This is an action to obtain the relief of mandamus and mandatory injunction, wherein the plaintiff seeks a decree directing the defendants to issue to him a license to conduct a junk business at 1004 and 1006 Roxboro Street in the City of Durham, and enjoining the defendants from interfering with the operation of such business, and the defendants demur ore tenus to the complaint and move for a judgment on the pleadings. The Court overruled the demurrer and denied the motion, whereupon the defendants excepted and appealed to the Supreme Court, assigning errors.

Claude V. Jones, of Durham, for appellants.

Victor S. Bryant and John D. McConnell, both of Durham, for appellee.

SCHENCK Justice.

It is alleged in the complaint that the plaintiff is a citizen and resident of Durham County, and that the corporate defendant is a municipal corporation and the individual defendant is the Tax Collector thereof; that on the 8 May, 1941, the plaintiff tendered to the defendants $62.50 in payment of tax specified for the privilege of operating a junk business at 1004 and 1006 Roxboro Street in the City of Durham for the period between 1 June, 1941, through 31 May, 1942, which payment the defendants declined to accept and refused to issue to the plaintiff license to operate such business at such place and time, and based their refusal upon the theory that they were prohibited from issuing such license by a zoning ordinance adopted by the City of Durham on 16 May 1926; it is further alleged in the complaint that a junk business has been continuously operated at 1004 and 1006 Roxboro Street in the City of Durham by the plaintiff and his predecessors in title of said premises since before March 1925, prior to 16 May, 1926, when the ordinance which defendants invoke was adopted; and that said ordinance contains, inter alia, a provision as follows: "Any non-conforming use existing at the time of the passage of this ordinance may be continued."

The defendants' appeal in so far as it relates to their motion for judgment on the pleadings is fragmentary and premature and should be dismissed, since no appeal lies from a refusal of a judgment on the pleadings. The proper procedure upon such refusal is to bring forward an exception thereto for ruling upon appeal from a final judgment. Johnson v. Pilot Life Insurance Co., 215 N.C. 120, 1 S.E.2d 381, and cases there cited.

The exception brought forward by the defendants that the Court erred in sustaining plaintiff's objection to their introducing in evidence the ordinance adopted 16 May, 1926 by the City of Durham, cannot be sustained, since it is contrary to the uniform ruling of this Court that only matters presented in the pleadings will be considered on demurrer. Besseliew v. Brown, 177 N.C. 65, 97 S.E 743, 2 A.L.R. 862, and cases there cited.

The defendants contend that the relief of mandamus and injunction sought by the plaintiff should be denied for the reason that the plaintiff has an adequate remedy at law for the wrong which he alleges he has suffered, that if the plaintiff has wrongfully suffered by reason of the refusal of the defendants to grant him a license to conduct a junk business at the place involved, he has the right to apply for a...