Wallace v. Salisbury, 147 N.C. 58 (1908)

March 11, 1908 · Supreme Court of North Carolina

147 N.C. 58

S. L. WALLACE et al. v. R. H. SALISBURY et al.

(Filed 11 March, 1908).

1. Appeal and Error — No Case — Motion to Dismiss — Motion to Affirm.

A motion to dismiss because there is no case on appeal must be denied. The proper motion is to affirm the judgment below.

2. Same — No Case — Motion to Dismiss — Supreme Court — inspecting Record- — Ex Mero Motu.

When there is no motion to affirm the judgment below and the appeal is not properly constituted in the Supreme Court, it ' is the duty of the court, ex mero motu, to inspect the record proper for errors.

3. Same — Injunction—Case on Appeal — Exception to Judgment Below.

On appeal from an order granting or refusing an injunction, the pleadings and the affidavits constitute the record proper, and no “case on appeal” is necessary, as the facts are reviewable by the Supreme Court, and the mere fact of appeal is itself an exception to the only action of the Judge — the judgment.

4. County Commissioners — License to Sell Liquor — Elections—Presumption of Validity Conclusive — Trial by Jury.

There is a final and conclusive presumption in favor of the correctness of the result of an election as declared by the proper officials, until the issues raised by the pleadings have been tried and disposed of before the jury; and in the meanwhile an injunction will not lie against the county commissioners for the issuance of license to sell liquor, under allegations of defects and vital irregularities in an election held upon the question of prohibition, and denied by the answer.

Civil aotioN, appeal from order of Lyon, J., made at chambers in WilsoN, 4 February, 1908, dissolving a restraining order of plaintiffs.

Plaintiffs appealed.

Winston & Everett for plaintiffs.

Stubbs, Gilliam & Martin for defendants.

ClauK, C. J.

The motion to dismiss because there is no case on appeal must be denied, even in appeals in which there should be a case on appeal. Non constat, but there may be errors on the face of the record proper; hence the proper motion is to affirm the judgment below, and, if this motion is not made, it is the duty of the court, ex mero motu, to inspect the record proper for such errors. Hicks v. Westbrook, 121 N. C., 131; Barrus v. Railroad, ib., 505, and very numerous other cases collected in Clark’s Code (3d Ed.), pp. 769, 770.

But, indeed, on appeal from an order granting or refusing an injunction, no “case on appeal” is necessary, as the pleadings and affidavits constitute the record proper, since the facts are reviewable by this Court, and the appeal is itself an exception to the only action of the Judge, i. e., the judgment. Hamilton v. Icard, 112 N. C., 593. If any part of the affidavits or pleadings is not sent up, either party can always move for a certiorari to supply the missing part of the record. In equity proceedings the affidavits are a part of the record.

No “case on appeal” is necessary, and tbe appeal from tbe judgment is a sufficient exception and assignment of error likewise, when tbe judgment below is rendered upon a case agreed or upon a demurrer, and for tbe same reason as wben tbe judgment grants or refuses an injunction to tbe bearing, or a temporary injunction, i. e., tbe judgment wbicb is rendered upon tbe record proper is tbe only error assignable or possible. Chamblee v. Baker, 95 N. C., 98; Davenport v. Leary, ib., 203; Greensboro v. McAdoo, 112 N. C., 360; Clark v. Peebles, 120 N. C., 32; Railroad v. Stewart, 132 N. C., 249.

Tbis is an action by certain citizens and residents of James-ville against tbe Commissioners of Martin County, alleging defects and vital irregularity in an election held in tbe town of Jamesville upon tbe question of prohibition, tbe result of wbicb election bad been declared and duly certified to be in favor of saloons, and that license bad been issued to certain parties accordingly. Tbe plaintiffs ask to bave tbe election declared void and that tbe defendants be restrained in tbe meantime from issuing licenses. Tbe answer squarely denies the allegations touching tbe validity and regularity of tbe election. Tbe Judge properly dissolved tbe temporary restraining order. Tbe question as to tbe validity of tbe election is presented by tbis direct attack upon it, and is triable before a Judge and jury. But in tbe meantime tbe presumption in favor of tbe correctness of tbe result of tbe election, as declared by tbe proper officials, is final and conclusive until reversed by tbe judgment of tbe court, after trial of tbe issues in tbis proceeding brought to impeach it. Bynum v. Commissioners, 101 N. C., 414, and cases there cited.

Affirmed.