Ponder v. North Carolina State Board of Elections

233 N.C. 707 | N.C. | 1951

Stacy, O. J.

The first question for decision is whether the complaint states facts sufficient to constitute a cause of action or to invoke the equitable powers of the court. The trial court answered in the affirmative. We are inclined to a different view.

The demurrer should have been sustained on the second and third grounds set out therein. The complaint reveals no personal or property right of the plaintiff which is threatened or endangered by anything the defendants propose to do. Conversely, it is alleged the defendants can do nothing to affect the title to the office of Sheriff which the plaintiff holds, and this is admitted. The plaintiff has “jumped before he is spurred.” Warren v. A. C. L. R. R., 223 N.C. 843, 28 S.E. 2d 505. The facts alleged are not sufficient to attract the attention of a court of equity or to invoke its jurisdiction. Greenville v. Highway Com., 196 N.C. 226, 145 S.E. 31, and cases there cited; 28 Am. Jur. 216, et seq. Nor is it deemed essential or presently pertinent that we animadvert on allegations dehors the field of equity or which linger outside its province.

In this'view of the matter, the remaining exceptions become moot or academic. The restraining order entered below will be vacated, the action dismissed, and the plaintiff taxed with the costs.

Reversed.