Starbuck v. Town of Havelock

Annotate this Case

120 S.E.2d 440 (1961)

255 N.C. 198

James W. STARBUCK, Albert Cianciose, William E. Singleton, Donald G. Gardner and Vernon A. Carpenter and all other citizens, taxpayers, qualified electors or residing or owning property in that particular area or territory hereinafter described as the Town Limits of the Town of Havelock who will come in, make themselves parties and contribute to the expense of this action, v. TOWN OF HAVELOCK, George Griffin, Mayor; Clay Wynne, Commissioner; Jesse Lewis, Commissioner; Norwood Sanders, Commissioner; Irving Beck, Commissioner.

No. 93.

Supreme Court of North Carolina.

June 16, 1961.

*442 Charles L. Abernethy, Jr., New Bern, for plaintiffs, appellants.

A. D. Ward, Kennedy W. Ward, New Bern, for Town of Havelock, et al., defendants, appellees.

Laurence A. Stith, New Bern, for Craven County Board of Elections, defendants, appellees.

HIGGINS, Justice.

The plaintiffs filed a motion here to correct "stipulations nine and ten as reported in the statement of facts," not upon the ground the stipulations are not as filed in the court below, but on the ground they do not state what the plaintiffs intended to agree to. Motions suggesting diminution of the record on the ground the case on appeal does not conform to the record below will lie, but when the stipulations are filed with the court below and are correctly certified here, we are bound by them. Moreover, a successful challenge to an election must show that irregularities occurred which were sufficient to upset the result. Overton v. Mayor and City Commissioners, 253 N.C. 306, 116 S.E.2d 808.

Stipulations 9 and 10, together with the lack of evidence of any irregularities sufficient to disturb the result, required nonsuit. The questions otherwise are rendered moot by an Act of the General Assembly ratified April 18, 1961, entitled, "An Act to Ratify and Validate the Creation of the Town of Havelock and to Confirm and Validate the Acts of the Mayor and Commissioners of Said Town."

On the basis of the record here, the nonsuit in the court below is

Affirmed.