Patterson v. Hubbs

• Decision Date: 31 January 1871
• Citation: 65 N.C. 119
• Court: North Carolina Supreme Court
• Parties: JOHN PATTERSON v. ORLANDO HUBBS.

65 N.C. 119

JOHN PATTERSON

v.ORLANDO HUBBS.

Supreme Court of North Carolina.

January Term, 1871.

A civil action, in which the plaintiff in his own name sets forth in his complaint that he is the tax collector for a certain county, and that the defendant has usurped the office, and has unlawfully received the fees and emoluments thereof, cannot be brought under the 189th section of the C. C. P., and thereby obtain an injunction to restrain the defendant from acting in said office.

The 189th section of the C. C. P., which provides as to a civil action that “when, during the litigation, it shall appear that the defendant is doing or threatens, or is about to do, or procuring or suffering some act to be done in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act,” does not apply to cases of the usurpation of a public office, but is confined to cases where some private right is a subject of controversy, and the act sought to be restrained would produce injury to the alleged right of the plaintiff during the litigation.

When the subject of a controversy is the right to a public office, the action should be brought by the attorney-general under the 366th section of C. C. P., in the name of the people of the State, and if it be against a person for usurping a public office, the attorney-general, in addition to the statement of the cause of action, “may also set forth in the complaint the name of the person rightfully entitled to the office with a statement of his right thereto; and in such case upon proof by affidavit that the defendant has received fees or emoluments belonging to the office, and by means of his usurpation thereof, an order may be granted by a Judge of the Supreme Court for the arrest of such defendant, and holding him to bail;” as in other civil actions where the defendant is subject to arrest.

This was an action in which the plaintiff, claiming that he was tax collector for the County of Craven, applied for an order for an injunction against the defendant, who alleged that he was Sheriff of the said County, and as such had the right to collect the taxes of the County, embracing those the collection of which was claimed by the plaintiff. A temporary injunction was granted upon the filing the complaint, and upon the trial before Clarke, J., at the last term of the Superior Court for the County of CRAVEN, the injunction was ordered to be continued, and the defendant appealed. The facts are sufficiently stated in the opinion of the Court.

Seymour & Green for the defendant .

Manly & Haughton for the plaintiff .

PEARSON, C. J.

It is provided (C. C. P., sec. 366,) “an action may be brought by the Attorney General in the name of the people of the State,” &c., “when any person shall usurp, intrude into, or unlawfully hold or exercise any public office,” & c. Sec. 369, “whenever such action shall be brought against a person for usurping an office, the Attorney General may also set forth the name of the person rightfully entitled to the office, and in such case upon proof by affidavit, that the defendant has received fees and emoluments belonging to the office, an order may be granted by a Judge of the Supreme Court, for the arrest of the defendant, and holding him to bail,” &c.

The...