State ex rel. Glamorgan Pipe & Foundry Co. v. Benfield, 520
| Decision Date | 14 January 1966 |
| Docket Number | No. 520,520 |
| Citation | 266 N.C. 342,145 S.E.2d 912 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina, ex rel. GLAMORGAN PIPE & FOUNDRY COMPANY, a corporation, and all other creditors of the Estate of K. R. Benfield, deceased, who desire to join in the prosecution of this action and contribute to the costs hereof, Relators, and Glamorgan Pipe & Foundry Company, a corporation, v. Margaret S. BENFIELD, Administratrix of the Estate of K. R. Benfield, deceased, and the Phoenix Insurance Company, a corporation. |
Emanuel & Emanuel, Raleigh, for plaintiff appellant.
Ellis Nassif, Raleigh, for Margaret S. Benfield, Administratrix, defendant appellee. appellee.
Maupin, Taylor & Ellis and Frank W. Bullock, Jr., Raleigh, for The Phoenix Insurance Company, defendant appellee.
G.S. § 55-154, in pertinent part, provides: '(a) No foreign corporation transacting business in this State without permission obtained through a certificate of authority under this chapter or through domestication under prior acts shall be permitted to maintain any action or proceeding in any court of this State unless such corporation shall have obtained a certificate of authority prior to trial; * * * An issue arising under this subsection must be raised by motion and determined by the trial judge prior to trial.'
The issue raised by defendants' motions to dismiss should have been determined by the trial judge prior to trial. These motions challenged the authority of the court to proceed with a trial of the cause on its merits.
What is denominated 'Finding of Fact' No. 3 is actually a conclusion of law, not a finding of fact. Abney Mills, Inc. v. Tri-State Motor Transit Co., 265 N.C. 61, 73, 143 S.E.2d 235. Under authority of the cited case, which was decided July 23, 1965, defendants confess error and concede the cause must be remanded for specific findings as to facts pertinent to whether plaintiff 'has transacted business in the State of North Carolina.' Defendants are well advised.
Absent specific findings of fact supported by evidence and justifying the conclusion of law embodied in 'Finding of Fact' No. 3, the judgment of the court below is erroneous and is therefore vacated. The cause is remanded for a de novo hearing and determination of defendants' said motions to dismiss in accordance with requirements stated herein.
There has been no determination of any of the issues raised by the pleadings relating to the merits of plaintiff's...
To continue reading
Request your trial
-
Peoples v. Peoples
...Facts are the basis for conclusions, and to call a 'conclusion' a 'finding of fact' does not make it one. Glamorgan Pipe & Foundry Co. v. Benfield, 266 N.C. 342, 145 S.E.2d 912 (1966). A failure to make a proper finding of fact in a matter at issue between the parties will result in prejudi......
-
Harold Lang Jewelers, Inc. v. Johnson
...by the trial judge prior to trial." N.C. Gen.Stat. § 55-15-02(a); see also State of North Carolina ex rel. Glamorgan Pipe & Foundry Co. v. Benfield, 266 N.C. 342, 344, 145 S.E.2d 912, 913 (1966) (holding that motions under the predecessor to § 55-15-02 "challenge the authority of the Court ......
-
State v. Saults, 78
...1185, 92 L.Ed. 1739 (1948). The findings of fact must support and justify the conclusion of law. State, ex rel. Glamorgan Pipe and Foundry Co. v. Benfield, 266 N.C. 342, 145 S.E.2d 912 (1966). Here, Judge Kirby's findings of fact numbers 3, 4 and 5 are: (3) Parker testified during the first......
-
State v. Sanders
...the trial court for a determination of the motion to suppress in light of Dickerson and the foregoing opinion. See Foundry Co. v. Benfield, 266 N.C. 342, 145 S.E.2d 912 (1966). Reversed and JOHNSON and COZORT, JJ., concur. ...