State v. Smitherman

Annotate this Case

111 S.E.2d 834 (1960)

251 N.C. 682

STATE of North Carolina ex rel. Elwood C. LONG, Relator, v. Sam G. SMITHERMAN.

No. 528.

Supreme Court of North Carolina.

January 14, 1960.

*835 Harold W. Gavin, Sanford, S. H. McCall, Jr., Troy, for relator appellant.

Charles H. Dorsett, David H. Armstrong, Troy, for defendant appellee.

WINBORNE, Chief Justice.

In Article 41 of Chapter 1 of the General Statutes of North Carolina pertaining to actions in the nature of quo warranto it is provided in G.S. § 1-522 that "All actions brought by a private relator, upon the leave of the Attorney General, to try the title to an office must be brought, and a copy of the complaint served on the defendant, within ninety days after his induction into the office to which the title is to be tried; and when it appears from the papers in the cause, or is otherwise shown to the satisfaction of the court, that the summons and complaint have not been served within ninety days, it is the duty of the judge upon motion of defendant to dismiss the action at any time before the trial, at the cost of the plaintiff."

*836 The language of this statute is clear, positive and understandable. It requires no construction. State v. Carpenter, 173 N.C. 767, 92 S.E. 373. "When the language of a statute is plain and free from ambiguity, expressing a single, definite, and sensible meaning, that meaning is conclusively presumed to be the meaning which the Legislature intended, and the statute must be interpreted accordingly." See headnote No. 2 in School Com'rs of City of Charlotte v. Board of Aldermen, 158 N. C. 191, 73 S.E. 905.

It is under this section that the motion of defendant to dismiss the action is made. And from the judgment from which appeal is taken it appears that the judge of Superior Court finds as a fact that the summons and complaint in the action were served on the defendant on the 4th day of April, 1959, which was more than ninety days after his induction into the office of Sheriff of Montgomery County, on 31 December, 1958, that is, not within the ninety days next after his induction in office. Indeed this fact is not controverted. Therefore the facts on which the motion is based clearly come within the provisions of the statute G.S. § 1-522.

And in the record of case on appeal the relator appellant assigns as error, 1, "the ruling of the court in sustaining or allowing the defendant's motion to dismiss"; and, 2, "the signing of the judgment as appears of record."

There is no exception or assignment of error challenging the facts found. Therefore, the only questions presented by the assignments of error are (1) Is there error in law appearing on the face of the record proper; (2) Do the facts found support the judgment. See Sec. 21, Appeal and Error, Strong's N. C. Index; Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351.

In the light of the factual situation the case comes clearly within the purview and meaning of the statute G.S. § 1-522. The record fails to show any assignment of error with respect to any particular question of law, and the facts found support the judgment.

Hence the judgment is