Swink v. Horn

• Decision Date: 20 November 1946
• Docket Number: 521
• Citation: 40 S.E.2d 352,226 N.C. 718
• Parties: SWINK v. HORN.
• Court: North Carolina Supreme Court

40 S.E.2d 352

226 N.C. 718

SWINK v. HORN.

No. 521

Supreme Court of North Carolina

November 20, 1946

J C. Sedberry, of Charlotte, for plaintiff.

O W. Clayton, of Charlotte, for defendant.

DEVIN Justice.

The defendant in the above entitled cause moves in this Court that plaintiff's action be dismissed as having abated by reason of the death, pending the appeal, of the plaintiff's mother whose critical illness was alleged to have rendered it necessary for plaintiff to obtain possession of the apartment now occupied by the defendant, under Federal Rent Control Regulations. It was contended that plaintiff's cause of action has become moot and is no longer supported by existing facts.

Undoubtedly, where, pending an appeal, the subject of the action has been destroyed or has ceased to exist, or been settled between the parties, or the right of action does not survive the death of the plaintiff, or the action or thing sought to be enjoined has happened or been completed or because of devolution of title plaintiff's interest has determined, a motion in this Court to dismiss the action as having abated ordinarily would be entertained. Cochran v. Rowe, 225 N.C. 645, 36 S.E.2d 75; Efird v. Board of Commissioners, 217 N.C. 691, 9 S.E.2d 466; Rousseau v. Bullis, 201 N.C. 12, 158 S.E. 553; Rasberry v. Hicks, 199 N.C. 702, 155 S.E. 616; Glenn v. Culbreth, 197 N.C. 675, 150 S.E. 332; Kilpatrick v. Harvey, 170 N.C. 668, 86 S.E. 596; Reid v. Norfolk Southern R. Co., 162 N.C. 355, 78 S.E. 306; Wikel v. Board of Commissioners, 120 N.C. 451, 27 S.E. 117; State v Richmond & D. R. Co., 74 N.C. 287; Kidd v. Morrison, 62 N.C. 31; McIntosh, 775. But here the ground on which defendant's motion is based is in substance that evidence material to the issue tried below is no longer available to the plaintiff. This applies not to the subject of the action but to an element of proof. It is merely incidental to the relief sought. Plaintiff's cause of action has not been destroyed. The evidence referred to was used by the plaintiff in the trial below to overcome the artificial strength temporarily given the defendant's defense by the rent regulations under the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, s 901 et seq. The plaintiff's right to repossess her property upon the expiration of the defendant's lease, after due notice to vacate, under the law in this state, may not be deemed to have ceased to exist, or to...