Town of Fuquay Springs v. Rowland

79 S.E.2d 774 (1954)

239 N.C. 299

TOWN OF FUQUAY SPRINGS v. ROWLAND et al.

No. 462.

Supreme Court of North Carolina.

January 15, 1954.

*776 Mordecai & Mills, Raleigh, for plaintiff appellant.

Wm. B. Oliver, Fuquay Springs, for defendant appellant Rowland.

BARNHILL, Justice.

Defendant Rowland fails to assign as error the order overruling his demurrer or to bring the exception forward and discuss the same in his brief. Even so, in the light of our conclusion herein, this is immaterial.

A judge of a court of this State is not subject to civil action for errors committed in the discharge of his official duties. Consequently no cause of action is stated against defendant Rowland, and as to him the action is dismissed ex mero motu.

"`When * * * the complaint fails to state a cause of action, that is a defect upon the face of the record proper, of which the Supreme Court on appeal will take notice, and when such defects appear the Court will ex mero motu dismiss the action.'" Denny, J., in Hopkins v. Barnhardt, 223 N.C. 617, 27 S.E.2d 644, 645, and cases cited; State v. Ivey, 230 N.C. 172, 52 S.E.2d 346; Dare County v. Mater, 235 N.C. 179, 69 S.E.2d 244; Aiken v. Sanderfod, 236 N.C. 760, 73 S.E.2d 911.

While we concede that the Declaratory Judgments Act, G.S. ch. 1, art. 26, is comprehensive in scope and purpose, it does not, and was not intended to, embrace an action such as this. We cannot perceive that the Legislature, in enacting that statute, intended to vest in the superior courts of the State the general power to oversee, supervise, direct, or instruct officials of inferior courts in the discharge of their official duties.

The defendant Council did not appeal. Even so, he is an official of the court. If he fails to collect and account for monies rightfully belonging to plaintiff, or taxes, items of cost which should not be taxed, or fails to tax items which should be taxed, the law provides an adequate and expeditious remedy in behalf of those who have the right to raise the issue in any of these particulars.

Under the circumstances it is unnecessary for us to discuss errors in the judgment in respect to certain items of cost.

The appeals are dismissed and the cause is remanded with direction that it be dismissed from the docket.

Appeals dismissed.