Town of Asheboro v. Miller

• Decision Date: 05 November 1941
• Docket Number: 378.
• Citation: 17 S.E.2d 105,220 N.C. 298
• Parties: TOWN OF ASHEBORO v. MILLER.
• Court: North Carolina Supreme Court

17 S.E.2d 105

220 N.C. 298

TOWN OF ASHEBORO v. MILLER.

No. 378.

Supreme Court of North Carolina

November 5, 1941

Civil action to foreclose street assessment lien.

The parties waived trial by jury and agreed that the Court should hear the evidence, find the facts and render judgment thereon.

The Court, after hearing the evidence, found the facts as fully set out in the judgment rendered. Upon the facts found it adjudged "that the plaintiff take nothing by its action and that the same be dismissed", etc. The plaintiff excepted and appealed.

L T. Hammond, of Asheboro, for plaintiff, appellant.

Don A. Walser, of Lexington, for defendant, appellee.

BARNHILL Justice.

The defendant makes the contention (1) that this is a proceeding under C.S.§ 8037, as amended, and that it is barred for the reason that it was not instituted within 18 months after the sale and issuance of tax sale certificate; and (2) that there are fatal defects in the original proceedings under which the assessment was made.

The Court below in part found:

"5. That the Clerk of the Superior Court of Randolph County having issued an alias summons 91 days after the institution of the action, contrary to the provisions of C.S. § 480, as amended, unless said alias summons was issued in cases of tax suits brought under the provisions of C.S. § 8037, as amended, the plaintiff, by the issuance of said summons brought itself under C.S. § 8037, as amended.

"6. That this is an action brought to foreclose a certificate of a tax sale for the year 1925, and sold on June 2, 1930, under C.S. § 8037 and amendments."

Finding number 6 is, in fact, a conclusion based on finding number 5. It cannot be sustained. The summons to which reference is made is not an alias. Mintz v. Frink, 217 N.C. 101, 6 S.E.2d 804. The service thereof brought the defendant into Court. When he appeared and answered he thereby waived all prior defects and irregularities. C.S. § 490; Rector v. Laurel River Logging Co., 179 N.C 59, 101 S.E. 502 and cases cited; Wooten v Cunningham, 171 N.C. 123, 88 S.E. 1; Mills v. Hansel, 168 N.C. 651, 85 S.E. 17; Ashford v. Davis, 185 N.C. 89, 116 S.E. 162; Burton v. Smith, 191 N.C. 599, 132 S.E. 605; McCollum v. Stack, 188 N.C. 462, 124 S.E. 864; Reel v. Boyd, 195 N.C. 273, 141 S.E. 891; Abbitt v. Gregory, 195 N.C. 203, 141 S.E. 587.

If the original action as instituted by the summons theretofore issued (which does not appear of record) was subject to abatement for failure to issue an alias in apt time, motion to abate should have been made before answer.

The nature of the action is to be determined by the allegations of the complaint and not by the time the summons, purporting to be an alias, was issued.

There is no allegation of the issuance of a certificate of sale and no demand for the enforcement thereof. Nor is there any evidence tending to show that any such certificate was ever issued. It simply appears that the sovereign which held the lien sold as provided by statute. There were no bidders and it was compelled to bid in the property. Having failed to obtain the money due by the short-cut method of sale, it proceeded to foreclose the original lien under C.S. § 7990. The language of the complaint permits no other conclusion. We so decided on a substantially identical complaint in Town of Asheboro v. Morris, 212 N.C. 331, 193 S.E. 424.

Neither the evidence offered nor the facts found sustain the contention that the proceedings culminating in the assessment were in any respect fatally defective.

No petition of property owners was offered in evidence (finding number 9). It does not appear, however, that none was filed. On the contrary, the original resolution adopted by the town board recites the petition, that it was certified by the clerk, C.S. § 2707, and that it was signed by a majority of property owners representing a majority of all the lineal feet frontage abutting on that part of the streets to be improved.

While the petition is a prerequisite it is not jurisdictional. If the finding by the board was erroneous it should have been corrected by appeal. C.S. § 2714. Schank v. City of Asheville, 154 N.C. 40, 69 S.E. 681. Furthermore, there is a presumption in favor of the regularity of a proceeding under which public improvements, authorized by the General Assembly, have been made. Gallimore v. Town of Thomasville, 191 N.C. 648, 132 S.E. 657, and the assessment roll is prima facie evidence of a valid assessment and of the regularity and correctness of all prior proceedings. Anderson v. Town of Albemarle, 182 N.C 434, 109...