Arnold v. Porter, 119 N.C. 123 (1896)

Sept. 1896 · Supreme Court of North Carolina

119 N.C. 123

T. A. ARNOLD v. JOHN PORTER, Receiver of PARK LUMBER COMPANY.

Practice — Controversy Without Action — Prerequisites to Jurisdiction.

When a ease containing facts upon -which a controversy depends is sought to be submitted under Section 567 of The Code, an affidavit to the effect that the controversy is real and the proceeding in good faith to determine the rights of the parties is a prerequisite to jurisdiction, and in the absence of such affidavit the proceeding will be dismissed.

CoNtroversy without action, heard upon facts agreed before BoyTcin, J., at Chambers, on 3rd day of October, 1896. The affidavit required by Section 567 of The Code was not made or filed. Judgment was rendered against the party named as defendant, and he appealed.

Messrs. Shepherd c& Busbee, for plaintiff.

Messrs. S. Q. Ryan and Armistead Jones, for defendant, (appellant).

MONTGOMERY, J.:

It was intended, it seems, to submit without action a case containing facts upon which the controversy depends, under Section 567 of The Code. It appears that the affidavit required by the statute, to the effect that the controversy is real and that the proceeding is in good faith to determine the rights of the parties, was never made or filed. Such an affidavit is a prerequisite to the exercise of jurisdiction in the matter. Jones v. Commissioners, 88 N. C., 56 ; Grant v. Newsom, 81 N. C., 86. The proceeding must be dismissed.

Dismissed.