Nash v. City of Monroe

BeogdeN, J. The plaintiff insists that the order of the trial judge was an interlocutory order, and that an appeal was premature and should be dismissed. The defendant, upon the other hand, contends that the judgment in the former action was a final judgment, and consequently, the trial judge had no authority to resurrect a dead case and put it back on the trial docket. The contention of defendant is sound and is directly supported by Poison v. Strickland, 193 N. C., 299. See, also, Moore v. Edwards, 192 N. C., 446. The suit was brought originally to restrain the payment of the note and to prevent the city from including the amount of the note in the budget. In the former opinion the Court held that while no tax could he levied for the purpose of discharging the indebtedness^ notwithstand *731 ing, if the city “bad the money in its treasury, it could purchase equipment for its hospital.” Thereafter, the city purchased the equipment from Dr. Mahoney and contends that the purchase price’ thereof was paid out of current-funds then in the treasury. The only question then, open to contest is, did the city have the money, legally available, for making the purchase? Neither the bank nor Mahoney has any legal interest in this question, and the order bringing them into court was improvidently made. Upon consideration of all the facts and circumstances, it is obvious that a moot question only is presented. The policy of the law with respect to such is well settled. Reversed.