City of Wilmington v. Atkinson, 88 N.C. 54 (1883)

Feb. 1883 · Supreme Court of North Carolina

88 N.C. 54

CITY OF WILMINGTON v. ATKINSON & MANNING.

Practice — Controversy without Action.

The court will not hear a controversy without action, under section 315 of the Code, in the absence of an affidavit that the same is real and in good faith to determine the rights of the parties. Grant v. Newsom, 81 N. C., 36, approved. (Other irregularities, in reference to the manner in which the cause was conducted as shown by the record, pointed out).

(Grant v. Newsom, 81 N. C., 36, cited and approved).

.. PROCEEDING heard at Rail Term, 1882, of New Hanover Superior Court, before MacRae, J.

The proceeding is against the defendants and several others, doing business as insurance agents in the city of Wilmington. The city ordinance imposes a license tax for the privilege of carrying on such business within its corporate limits. The defendants were duly licensed under the provisions of the insurance law of the state, and it is the object of this proceeding to ascertain whether they are liable to a city tax.- The court below held in favor of the defendants, and the plaintiff appealed.

Messrs. DuBrutz Cutler and E. 8. Martin, for plaintiff.

Messrs. Russell <& Riccuud, for defendants.

Smith, J.

It is impossible, without utterly disregarding the forms and proprieties of judicial procedure, to entertain an appeal and pass on the error assigned upon such a record as is before us.

It appears upon a statement of facts, out of which arises the controversy to be settled, declared, by the justice assuming jurisdiction and rendering judgment, to have been agreed on between the parties, but supported by no other authentication, that he proceeded to hear and decide a claim of the plaintiff against five separate and independent insurance agencies, for taxes against each, while there is no community of interest whatever among them, unless it be in the solution of a question of law upon which the liability of each depends.

This proceeding seems to have been intended to be conducted under section 315 of the Code, which has no application to the court of a justice of the peace; and if it does, there is no accompanying affidavit, as required, “that the controversy is real, and the proceeding in good faith, to determine the rights of the parties.” The justice’s judgment is found in the transcript and no other memorial of what transpired before him, nor that an appeal was taken.

The record next contains another fuller statement of facts agreed, taking no notice of what occurred in the justice’s court; and this is authenticated by the signatures of counsel representing both parties, and equally defective in the absence of the required oath. It is laid before the judge of the superior court, not to be acted on while holding the session of the court, and he proceeds to render judgment against the plaintiff for costs of the several defendants.

If the jurisdiction assumed by the judge be original, there is a fatal want of jurisdiction, since the-aggregate sum claimed from the defendants is but one hundred and forty-eight dollars, and the absence of the affidavit as held in Hervey v. Edmunds, 68 N. C., 243, and Grant v. Newsom, 81 N. C., 36.

If the jurisdiction exercised be appellate, it is not so shown in the transcript, nor is the chasm which separates the courts bridged over, so that we can see how the case passed from one to the other. Apparently,, the two repugnant adjudications subsist.

In any aspect of the case, nothing remains for us to do but dismiss the action, and it is so ordered.

Per CuriaM. Dismissed.