Savage v. City of Kinston, 238 N.C. 551 (1953)

Nov. 4, 1953 · Supreme Court of North Carolina

238 N.C. 551

H. M. SAVAGE and Wife, DORA MAE SAVAGE, v. THE CITY OF KINSTON, a Municipal Corporation, GUY ELLIOTT, Mayor of the CITY OF KINSTON; EDWARD P. JOHNSON, Alderman; JOHN W. RIDER, Alderman; CHARLES R. TAYLOR, Alderman; BURWELL TEMPLE, Alderman; JESSE P. WOOTEN, Alderman; W. J. HEARD, City Manager, and W. G. McADAMS, Superintendent of Public Utilities.

(Filed 4 November, 1953.)

Appeal and Error § 5—

Where the relief sought by mandamus has been granted pending the appeal, the appeal will be dismissed, since the question has become academic.

Appeal by defendants from Harris, J., June Term, 1953, of LeNOir.

This is a civil action instituted to compel the City of Kinston, which owns and operates the electric and water systems supplying its inhabitants, by mandamus, to supply electric and water service to the premises of the plaintiffs known as 208% East 'Washington Street in Kinston.

The defendants in their answer deny that the plaintiffs are entitled to the service they seek on the ground that the building in question had been remodeled or reconstructed in such manner as to violate the Building and Plumbing Codes of the City of Kinston and also its Zoning Ordinance.

When the matter came on to be heard, the plaintiffs moved for judgment on the pleadings. Whereupon, the court below held that the matters pleaded as a defense were collateral, extraneous and irrelevant to the merits of this controversy and allowed the motion. Judgment was entered directing the defendants to have the proper inspectors of the City of Kinston to inspect the plumbing and electrical facilities in the above described premises, and upon a finding by the inspectors that the plumbing and electrical facilities are installed and located substantially in com-plianee with the Building and Plumbing Codes of the City of Kinston and G.S. 160-141, to furnish such light and water service as may be required at the premises in controversy.

From the above judgment the defendants appeal and assign error;

Geo. B. Greene, E. W. Price, and James H. Brooks for appellants.

Wallace & Wallace, Taylor Allen, and Lindsay G. Warren, Jr., for appellees.

Per Curiam.

. The Court has been informed that the inspections directed to be made-by the judgment .entered below have been made by the proper inspectors of the City of Kinston; that the plumbing and electrical facilities in the building have been found to comply with the requirements of the Building and Plumbing Codes of the City of Kinston and G.S. 160-141, and that the City of Kinston is now furnishing to the plaintiffs the light and water service as demanded in their complaint. The City of Kinston having complied with the provisions of the judgment, the question as to whether or not the plaintiffs were entitled to the relief'sought and granted in the judgment entered below, becomes academic. Pickler v. Bd. of Education, 149 N.C. 221, 62 S.E. 902; Wallace v. Wilkesboro, 151 N.C. 614, 66 S.E. 657; Moore v. Monument Co., 166 N.C. 211, 81 S.E. 170; Allen v. Reidsville, 178 N.C. 513, 101 S.E. 267; Person v. Watts, 184 N.C. 499, 115 S.E. 336.

The City of Kinston, however, is not foreclosed of any remedy it may have with respect to .the violation of its Building Code or its Zoning Ordinance by reason of the manner in which the building in question had been reconstructed.

Appeal dismissed.