Seabd. Air Line Ry. Co v. Brunswick County

• Decision Date: 02 April 1930
• Docket Number: No. 289.,289.
• Citation: 152 S.E. 627
• Court: North Carolina Supreme Court
• Parties: SEABOARD AIR LINE RY. CO. v. BRUNSWICK COUNTY.

152 S.E. 627

(198 N.C. 549)

SEABOARD AIR LINE RY. CO.

v.BRUNSWICK COUNTY.

No. 289.

Supreme Court of North Carolina.

April 2, 1930.

Appeal from Superior Court, Brunswick County; Cranmer, Judge.

Action by the Seaboard Air Line Railway Company against Brunswick County. Judgment for plaintiff, and the defendant appeals.

Appeal dismissed.

This is an action to recover the sum of $614.22 paid by plaintiff to the sheriff of Brunswick county on account of taxes illegally levied upon its property and demanded by said sheriff.

At the trial, defendant conceded that said sum of money was levied as a tax on plaintiff's property without lawful authority. It contended, however, that plaintiff is not entitled to recover in this action because of its failure to comply strictly with the provisions of C. S. § 7979, with respect to the demand for the refund of the amount which it had paid to the sheriff under protest.

Upon the facts found by the court, there was judgment for the plaintiff.

C. Ed Taylor and J. W. Ruark, both of Southport, for appellant.

John D. Bellamy & Sons, of Wilmington, for appellee.

CONNOR, J.

It does not appear on the record filed in this court by the defendant that defendant excepted to the judgment or appealed therefrom to this court. The judgment is set out in the case on appeal which was served on counsel for plaintiff. There are no entries, however, showing any exception by defendant, or any notice of appeal to the plaintiff, either in open court or within the time prescribed by statute. C. S. §§ 641, 642. The appeal docketed in this court by the defendant must therefore be dismissed. Corporation Comm. v. R. R., 1S5 N. C. 435, 117 S. E. 563; Howell v. Jones, 109 N. C. 102, 13 S. E. 889. The record filed in this court must show at least that an appeal was taken from the judgment. Otherwise this court acquires no jurisdiction of the action. Const. of N. C. art. 4, § 8.

The assignments of error shown in the transcript filed in this court are not based upon exceptions appearing in the case on appeal. They will, therefore, not be considered. They do not supply the want of exceptions. Boyer v. Jarrell, 180 N. C. 479, 105 S. E. 9.

The question discussed on the hearing in this court, to wit, whether, in the absence of a demand on the treasurer of the county, within thirty days after the payment to the sheriff, under protest in writing, for the re fund of money paid to him for a tax illegally levied by the county, the taxpayer is entitled to recover in an...