State ex rel. Kelly v. Justices of Moore Cnty.

• Decision Date: 30 June 1842
• Citation: 24 N.C. 430,2 Ired. 430
• Court: North Carolina Supreme Court
• Parties: STATE ON THE RELATION OF JOHN B. KELLY v. THE JUSTICES OF MOCRE COUNTY.

2 Ired. 430

24 N.C. 430

STATE ON THE RELATION OF JOHN B. KELLY

v.THE JUSTICES OF MOCRE COUNTY.

Supreme Court of North Carolina.

June Term, 1842.

Where a mandamus is issued against the justices of a county, in their official capacity as justices of the County Court, and a judgment rendered against them, they may appeal, although a minority of the justices refuse to join in the appeal.

The rule as to appeals, in relation to joint individuals, defendants to a suit, does not apply.

A writ of mandamus will not be granted to a relator for his relief, except where he has a specifiic legal right, and has no other specific remedy adequate to enforce it.

An appeal from the Superior Court of Moore county, at Spring Term, 1842, his Honor Judge NASH presiding.

This was a petition for a mandamus against the justices of Moore county. An alternative mandamus was issued, and upon its return and the answers of the defendants being filed, the Superior court ordered that a peremptory mandamus should issue. From this judgment a majority of the justices appealed--a number of the justices (a minority as it appeared) refused to join in the appeal. The facts appertaining to the case and the questions raised are so well expressed in the opinion delivered in the Supreme Court that it is unnecessary to detail them here.

Badger and Winston for the plaintiff .

Strange for the defendants .

GASTON, J.

At the August Term, 1841, of Moore Superior Court, the relator, John B. Kelly, exhibited a petition in said court, wherein he alleged that, at the February Term, 1838, of the Court of Pleas and Quarter Sessions of said county, a majority of the Justices of the county being present, an order was duly made for building a new Court-House for the county, and the petitioner and others named in the petition were appointed commissioners to carry said order into effect, and to contract with some fit person for doing the contemplated work; that the commissioners, in pursuance of the authority so given, contracted with Dabney Cosby, to perform all the labor, and furnish all the materials required, at the price of five thousand dollars, to be paid at the discretion of the commissioners as the work progressed; that a considerable portion of the work being done, and Cosby requiring a payment, the said court, at February Term, 1839, authorized the said commissioners to raise money by a loan from any of the banks, pledging the faith of the county for the payment of the money borrowed; that the commissioners accordingly offered their own note for discount at the Bank of Cape Fear, and thus obtained a loan for $2,000, and paid over this money to Cosby; that this note has been several times renewed on payment of instalments, which payments were made by the county, until it was reduced to a sum between three and four hundred dollars, and that it was then due, unpaid, and under protest. The petitioner further alleged that the Court-House having been completed and received by the county, and the said Cosby being urgent for the payment of the balance due him on account thereof, and the commissioners being without funds for making the payment, the petitioner and the rest of the commissioners (with the exception of one who had left the State,) relying on the authority given by the justices of said county, and on the pledge of the public faith, did, on the 26th October, 1839, execute a note, “in behalf of the county and as commissioners” to the said Cosby, for $2,957 73, with interest from that date; that the said Cosby, contending that the commissioners who had executed that note had rendered themselves personally responsible, had brought suit thereon against them, and should he obtain judgment, the petitioner would be grieviously oppressed, and the character of the county injured and degraded. The petitioner stated further, that upon his application, the County Court, at its February Term, 1841, a majority of the justices being present, duly passed an order laying a tax of fifty cents on the poll, and fifty cents on every three hundred dollars' worth of real estate, to raise a part of the fund for payment of the debt due to Cosby, and the balance due the bank, in addition to a tax or rate of eighty-five cents levied for county purposes; but that, at the August Term thereafter, a majority of the justices being present, the justices rescinded the order for laying a tax for the purpose of paying what was due to Cosby and the bank, and that at the time of preferring the petition there was no tax for raising funds to discharge these demands. The prayer of the petition was for a mandamus to be directed to the justices of the county of Moore, commanding them to impose a tax for that purpose, or shew cause wherefore they declined and refused so to do; and the petition set forth the names of the said justices, (35 in number) and prayed that the said writ might...