Finney v. . Corbett

Brogden, J. The interveners contend that the judgment of Lyon, J., rendered in a controversy without action on 16 November, 1925, should be set aside for the reason that the record does not disclose a “controversy without action” as contemplated by law. What constitutes a controversy without action as contemplated by 0.S., 626? The essentials of such a proceeding are: 1. The existence of a “question in difference.” 2. The existence of an adverse claim. 3. The proceeding must be brought in good faith. These essentials to jurisdiction must appear by affidavit. The statute, O. S., 626, provides: “But it must appear by affidavit that the controversy is real, and the proceedings in good faith to determine the rights of the parties.” Such an affidavit as the statute requires is a prerequisite to the exercise of jurisdiction. Furthermore, to confer jurisdiction in such cases the requirements of the statute must be strictly observed. Grant v. Newsom, 81 N. C., 36; Jones v. Comrs., 88 N. C., 56; Arnold v. Porter, 119 N. C., 123; Grandy v. Gulley, 120 N. C., 176; Waters v. Boyd, 179 N. C., 180; Burton v. Realty Co., 188 N. C., 473. In Waters v. Boyd, supra, the affidavit declared that: “The controversy between them is genuine and is submitted to the court to determine the rights of the parties.” The Court held that such an affidavit was not in compliance with the statute and dismissed the action. In Burton v. Realty Co., supra, the action was dismissed with the following declaration: “While, upon the facts presented, the title would seem to be valid, we must dismiss the proceeding for want of a real controversy.” *317 In the case now under consideration there is no affidavit at all. Even if the purported controversy without action itself should be treated as an affidavit, there is no allegation that the controversy is real or that the proceeding is brought in good faith. The record shows that the controversy without action submitted to Judge Lyon was verified in the following language: “R. Gordon Einney, Receiver of the First National Bank of Selma, N. C., being duly sworn, deposes and says the foregoing agreed statement of facts and submission of controversy without action is true of his own knowledge, except as to matters therein stated upon information and belief, and as to those matters he believes it to be true.” The proceeding, therefore, did not comply with the statute, and the judgment of Oranmer, J., is Affirmed.