Lassiter v. Adams, 196 N.C. 711 (1929)

March 6, 1929 · Supreme Court of North Carolina
196 N.C. 711
CARAH E. LASSITER v. J. H. ADAMS, Administrator of A. G. ADAMS et al.

CARAH E. LASSITER v. J. H. ADAMS, Administrator of A. G. ADAMS et al.

(Filed 6 March, 1929.)

1. Municipal Corporations — Officers, Agents and Employees — Personal Liability of Officers.

Public road officials of a township may not be held personally liable for their official acts in the absence of allegations that the acts were done maliciously or corruptly.

2. Pleadings — Demurrer—When Demurrer May Be Pleaded.

Objections to the sufficiency of the complaint to state a cause of action may be taken at any time in the orderly progress of the trial, or in the Supreme Court, or the Court may ex mero mote take notice of the insufficiency.

Appeal by plaintiff from Daniels, J., at September Term, 1928, of JohNstoN.

Affirmed.

*712 A. M. Noble for plaintiff.

James D. Parlcer for defendants.

Pee Ctjeiam.

It is admitted in tbe answer and set out in tbe judgment tbat tbe defendants at tbe time of tbe alleged trespass were acting in tbeir capacity as road commissioners of Bentonville Township. There is no allegation tbat they acted maliciously or corruptly. Hipp v. Ferrall, 169 N. C., 551; S. c., 173 N. C., 167. Tbe judgment contains tbe further recital tbat tbe action was instituted against public road officials; tbat more than six months intervened between tbe completion of tbe road and tbe commencement of tbe action; tbat tbe plaintiff knew within two months of tbe completion of tbe road tbat it bad been laid out and opened, and tbat it has been accepted and is now used by tbe county authorities. C. S., 3667. On motion of tbe defendants tbe court dismissed tbe action. Tbe judgment is affirmed. An objection tbat tbe complaint does not state a cause of action may be taken advantage of at any time. In such case tbe defendant may demur ore tenus or tbe Supreme Court of its own motion may take notice of tbe insufficiency. Johnson v. Finch, 93 N. C., 205; Garrison v. Williams, 150 N. C., 674; McDonald v. MacArthur, 154 N. C., 122.

Affirmed.