Grandy v. Gulley

C. W. GRANDY & SON v. N. J. GULLEY, Assignee of B. W. Ballard

Grandy v. Gulley, 26 S.E. 779 (N.C. 1897)

Court: Supreme Court of North Carolina · State Highest Courts
Decided: February 5, 1897
Judges: Fairoloth
Citations: 26 S.E. 779120 N.C. 176

Cited by 13 1 descriptions by later courts

Headnotes

Controversy Without Action — Necessary Affidavit — Jurisdiction. In order to give the court jurisdiction of a controversy submitted without action under section 567 of The Code, it is necessary that the affidavit required by the statute must be made showing that the controversy is real and the proceeding in good faith and that the court would have had jurisdiction if the proceeding was by summons.

Summary

CONTROVERSY without action, submitted upon facts agreed, and heard before Boykin, J., at October Term, 1896, of "Ware Superior Court. The affidavit required by Section 567 of the Code was not made or does not appear in the record. Judgment was rendered for the plaintiffs and defendant appealed.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Fairoloth

Fairoloth, C. J.:

This controversy was submitted without action, under The Gode, Sec. 567, upon an agreed state of facts. We cannot enter into the merits of the controversy, for the reason that the affidavit required by the Statute was not made or does not appear in the record. This mode of proceeding is unknown to the common law, and unless, the positive requirement of the Statute is observed the court is without jurisdiction.

It must appear by affidavit that the court would have jurisdiction if the proceeding was by summons; also that the controversy is real and the proceeding is in good faith.

Jones v. Commissioners, 88 N. C., 56 ;

Arnold v. Porter, 119 N. C., 123 .

In Bank v. Loan & Trust Co., 119 N. C., 553 , on motion, the defendant being present in this court and not objecting, the plaintiff was allowed to file the required affidavit, and the court proceeded to hear the case.

Proceeding Dismissed.

How later courts describe this case

Explanatory parentheticals written by citing courts — 1 in all; the most informative distinct ones are shown.

(“Our opinion, therefore, is that in the case before us the plaintiff [who acquired a railroad right of way by statutory presumption] has only an easement in the land in dispute.”)

City of Charlotte v. BMJ of Charlotte, LLC, 675 S.E.2d 59 (N.C. Ct. App. 2009)

Cited by 13 cases

View all citing references →

Relies on it most ⓘ

Keziah v. Seaboard Air Line Railroad Company158 S.E.2d 539 (N.C. 1968)
Norfolk Southern R. v. Stricklin264 F. 546 (E.D.N.C. 1920)
Lipe v. County of Stanly156 S.E. 243 (N.C. 1930)
County of Todd v. County of Morrison234 N.W. 593 (Minn. 1931)
Garris v. Hardy156 S.E. 245 (N.C. 1930)
PENLAND v. United StatesNo. 22-62 (Fed. Cl. July 7, 2026)

Most recent

PENLAND v. United StatesNo. 22-62 (Fed. Cl. July 7, 2026)
City of Charlotte v. BMJ OF CHARLOTTE, LLC675 S.E.2d 59 (N.C. Ct. App. 2009)
Norfolk Southern Railway Co. v. Smith611 S.E.2d 427 (N.C. Ct. App. 2005)
Love v. United States889 F. Supp. 1548 (E.D.N.C. 1994)
Keziah v. Seaboard Air Line Railroad Company158 S.E.2d 539 (N.C. 1968)
R. R. v. Manufacturing Co.51 S.E.2d 301 (N.C. 1949)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 3

Depth	Case	Cited by
	Jones v. Comm'rs of Franklin, 88 N.C. 56 (1883)	5
	Arnold v. Porter, 25 S.E. 785 (N.C. 1896)	4
	First Nat'l Bank of Winston v. Wachovia Loan & Trust Co., 26 S.E. 131 (N.C. 1896)	2

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