The Caucasian. (Clinton, N.C.) 188?-1913, 1895-04-18

vS- interested: that " was no, an Az
a To the right al The "ilcer-
" hos. terms were in question: nut ti,e
cour; felt that they would 'olun'arh!
accept the advice ss decisive
IL /. ,ru. that the Governor letter
to TIL. court suggested an impor'an'
question for its decision, ana We ihlhA
ON. prop..r for them ta act upon, otii
he. a Governor. had no interest IN ~
Iii. election or term oi office Wa IN NO
way involved. lie did not order the 1
,I,rti.n. or hold The election These 1
were pro, id-d for by the Legislature
A.. could not add 10 or take one da! I,
from the terms of the judges WIN OF
" a hour the opinion "i this court Ahu
il j, conceded that the opinion "I thl>
cnurt in that proceeding could n' d"
80. But the opinion was gwen "t' A">e
IL involved n grave constitutional iiie>-
ton i'm " hich the public was inter >iei,
and because the court had reasons Ter
thinking that the parties really III
t.re.t-d wished the opinion ol the
court aud would h. governed T.! ~.
This was. A. have -aId. an impor-
taut question and one, a. l think.
proper To be decided 10y this court. But
il was not necessary Ia tn. administra-
ton of the courts. II i most probable
there would have been elections held
for the>. offices without this opinion.
ana If there had not been. and m this
way yarancy had occurred. the GOV
.rnur was authorized by the consiitu-
ton .o fill il: So the administration al
Justice would have gone on.
But again. il j. contendcd by ia. ma
jority that A. section -. Of the Code ~
only intended Ia do away with The
formalitie- of pleading, and Ia property
constitute a ease under this section, ~
ought to contain sufficient aNrrmrnt> Ia
constitute cause of action upon
which the court could 20 Ia Judgment.
| agree Ia this proposition, but de- not
agree that Webb ". Hicks. decided al
| this term Is in conflict witht this action
Of the majority of the court IN tins
case In Webb ". Hicks, supra. ia"
court below held that the plaintiffs
were entitled To recover, and this court.
in reviewing the appeal al plaintiffs
were of the opinion that plaintiffs
complaint did not state cause oi
action, and affirmed" the judgment of
the court below. IL IL not in point in
this case, as | think.
But the action of the majority
of the court in this case. ad-
mitted as | do that there should
be sufficient avermcnts 10 enable
the court ,o-proceed To judgment: that
| this does not prevent the court from
giving its opinion i'm case important
to be decided, and that the court u Sis
tanned in its action. not only by the
case i'm ia y. &. g23, supra. but also 10y
such cases As the following: In Nc
Bride VS.. Patterson, IS y. 4. il2, which
was a contest between children OF the
same mother, some legitimate and some
Illegitimate{as To property. This COURT
Smith, {. j., delivering the opinion
discusses and decides the case upon it,
merits, and then held that the appeal
was prematurely taken and di>misses
the appeal.
In State vs.. Davis, 9S y. &. as, i'm a
case, coming up by successive appeals
from a Justices court to this court
upon the construction of the statut.
changing the presumption of evidence
this court fully discusses the case upon
the merits and declared the act uncon-
stitutional and void. Smith, &. j.. de-
livering the opinion of the court says
1--WE have gone into the question in
order to settle the question of the
validity of the statute in its appIica-
ton to the case before Us, and becau>,
it will practically put an end TO Tn.
; litigation" The case was then dis
missed for the reason that the special
verdict appealed from was not suili
cient to find a judgment upon.
, In GuilfOrd Co. vs.. Ga. CO.. 1903 y. e..
which was before this court simpI,
upon motion for a certiorari "a "A sub.
Stltute for an appeal, which the court
discussed and decided the case upon il .
. merits, Clark. j., delivered the opin.
ION of the court, and then refused Tn.
motion of defendant for he certiorari
to bring the ease To this court.
!, In State VS.. Taylor, 50 \. G.. 500. 4
case involving the question "a Il
whether a solicitor was entitled To q
. 500 or $1,000 tax fee, this court went
into full discussion of the case upon
its merits. Ashe, j., delivering the
opinion of the court, closes tn,
opinion as follows: "But a. the State
has no right to appeal in this case and
has no interest in the question, the
case is Dismissed
: In Milling Co. vs.. Findley, 40 y. G.
al, the court, Clark, D., delivering the
opinion, discusses the ease Oh il> merits
and sustains the judgment below. and
then says the appeal is premature and
and cannot be sustained
In State VS.. Wylde, 40 y. &. 800. be-
inga indictment for bigamy. the court
discusses and decides the case upon il.
merits. Clark, j., delivering the opin-
ion, dismisses the appeal upon tin.
ground that the affidavit upon which
defendant appealed was insufficient Ia
bring the case To this court.
In State vs.. Lockyear, % y. &. G:;3
which was an indictment for selling
liquor by the Capital club of tn. city
OF Raleigh, the court thought il of sufii-
cient public Importance, Smith, e.. j.
} delivering the opinion, to discuss and
decide the case upon its merits. in
which he gives the following reason
for deciding case not properly befor.
the court: THE wish of the partie.
} that il should be settled and the law
: declared, SO that it might be observed
in its integrity" and then proceeded
: to dismiss the case because there wa.
no judgment in the court below. and
none could be pronounced BY thi,
court.
There was no difficulty in under.
standing the point intended to be pre-.
scented to the court by this case. NJ
one has complained of it on that ac.
count. Then l repeat, treating thi.
case as in no better condition than il
: would have been in regular action
with complaint alleging all the facts
contained in this submission, with q
demurrer to the complaint, will not the
) cases cited above justify the court in
} giving its opinion upon its merits OF
the controversy: If it was of sufficient
Importance to decide whether a so.
licitOr was entitled to four dollar fee
or ten dollar fee to induce the cour,
. to decide the case upon its merits
though 1t was before the court on the
appeal of the State, which the court.
say had no interest in the question and
no right to appeal, is not the question
, presented by this case of sufficient i'm.
portance to justify the court i'm giving
its opinion upon the construction OF
. this act? If the construction of an ac-
of the Legislature changing the rule OF