17 S.E.2d 781 | N.C. | 1941
This was an action in the nature of quo warranto to try the title to the office of commissioner of the town of Lumberton, North Carolina. *529
Defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and the defendants appealed. The demurrer challenges the sufficiency of the complaint to state a cause of action on the ground that it does not affirmatively appear therein that the plaintiff is entitled to the office of commissioner of the town of Lumberton, or that he was wrongfully ousted therefrom.
It is a familiar rule that in the consideration of a demurrer, on the ground here interposed, the facts alleged in the complaint will be deemed admitted, and the allegations will be construed liberally in favor of the pleader. Adams v. Cleve,
For the purposes of the demurrer the facts alleged must be taken to be true. Hence, it appears that the plaintiff was duly elected to the office he claims on 5 May, 1941, and that though he received only eight votes, there were no votes for any other person, and that, if for any reason, which does not appear, the election was void, he would hold over *530 until his successor was elected and qualified. There was no vacancy, such as contemplated in the charter, which would empower the board to elect a successor. The complaint does not show any ground upon which the plaintiff could have been legally ousted.
Procedure by action in the nature of quo warranto would seem to be the proper method to determine the title to the office in controversy. Ellisonv. Raleigh,
The judgment overruling the demurrer is
Affirmed.