Cabarrus County Drainage District, No. 2 v. Board of Commissioners

Brown, J. The defendants moved to dismiss for misnomer, as the' defendants are sued under a wrong title. At the timé of making this motion defendants had filed an answer, pleading to the merits, and entered a general appearance. It is familiar law that where a defendant pleads in his true name he is concluded thereby, whether the proper method to raise the objection is by plea in abatement or otherwise. It is well settled that a general appearance cures a misnomer of defendant in process or pleadings. 14 Ency. P. & P., 298; 3 Oyc., 524. A misnomer is never a ground for dismissal, but for plea in abatement, when, the correct name being given, the summons and pleadings may be amended accordingly. Dunn v. Society, 151 N. C., 133. The plea in abatement must not only point out plaintiff’s error, but must show how it may be corrected by giving defendant’s true name. 1 Chitty Pldg., 446. The defendants contend that there is no evidence to support the second, third, and fifth findings of fact. No evidence was necessary, except such as is afforded by the record of the drainage proceedings and judgment rendered therein. The court states that the facts are found from an inspection of the record in the drainage proceedings, and these records show that the exceptions were filed and appeal taken. That it was never *740 prosecuted is manifest from the lapse of time. If it bas been prosecuted, and is pending undecided, the burden is on defendant to show it. The defendants except to the judgment. We see no objection to the form of the order of the court requiring defendants to pay the judgment out of the first money coming into their hands not otherwise appropriated. This does not require defendants to violate any law. If the entire fund raised by taxation and known as the general fund is required to meet the necessary expenses of the county government, economically administered, no part of it can be legally diverted to the payment of this judgment. Certainly the special funds raised by special taxation and appropriated to specific purposes cannot be so applied. Neither can the commissioners increase the tax levy beyond the constitutional limit in order to pay it, without legislative sanction. Bennett v. Commissioners, 173 N. C., 625. It is the duty of defendants to obey the order, if they can; but if, acting in good faith, they cannot, they will have full opportunity to make such answer, in case a rule for contempt is issued, returnable in the cause. Cromartie v. Commissioners, 87 N. C., 135. This question is fully discussed in that case, and the duties and powers of county commissioners declared. Affirmed.