Rosser v. . Matthews

Devin, J. Tbe town of Yass instituted tax foreclosure suits against tbe several plaintiffs to sell lands for tbe nonpayment of taxes. Tbe summonses, together witb copies of complaints, were duly served, and tbe plaintiffs, defendants in those actions, filed answers. Judgments in those suits were rendered in favor of tbe town 1 April, 1937, and tbe defendant Matthews was appointed commissioner of tbe court to make tbe sales after due advertisement. Tbe defendant commissioner, pursuant to tbe judgments, advertised tbe sales for 6 February, 1939, and on that date these plaintiffs instituted independent action against tbe commissioner and obtained a temporary restraining order restraining tbe sales. Thereafter, upon due notice and bearing upon tbe pleadings, tbe restraining order was dissolved. Tbe plaintiffs set up as grounds for this action and for restraining tbe commissioner’s sale that tbe judgments taken against them were without notice to them, and that tbe judgments were contrary to law for tbe alleged reason that they as individuals received no benefits from tbe town; that tax money bad not been properly applied, and some was negligently lost in a bank failure, and that a bonded indebtedness bad been wrongfully placed upon tbe town. Tbe facts set up in tbe answer tended to show proper service and notice to tbe plaintiffs of tbe foreclosure suits; that these suits were regularly calendared for trial at a regular term of tbe Superior Court of tbe county; that they were duly reached for trial, and tbe defendants consented to waive jury trial and that tbe court should find tbe facts; that tbe presiding judge, Frank S. Hill, entered tbe judgments of foreclosure according to tbe usual course and practice of tbe courts, and *134 appointed tbe defendant commissioner to sell; tbat several of tbe plaintiffs bave at times been officers of tbe town, and tbat tbey receive tbe same benefits as others in same situation; tbat some of these same plaintiffs instituted suit relative to tbe issuance of tbe bonds of tbe town in 1929, and tbe action was decided in favor of tbe town; tbat if any money was lost by reason of failure of tbe bank it was not tbe fault of tbe town, and this could not be interposed now as a defense to an action for nonpayment of taxes. Tbe facts set up in tbe answer are sufficient to sustain tbe action of tbe court below in dissolving tbe restraining order. While tbe court made no findings of fact, there was no request tbat be do so. In tbe absence of such request it will be presumed tbat sufficient facts were found to support tbe judgment. Dunn v. Wilson, 210 N. C., 493, 187 S. E., 802; Hinkle v. Scott, 211 N. C., 680, 191 S. E., 512. Furthermore, this Court has power to find and review tbe findings of fact on appeal in injunction proceedings. Angelo v. Winston-Salem, 193 N. C., 207, 136 S. E., 489; Dennis v. Redmond, 210 N. C., 780, 188 S. E., 807. It may also be said tbat there are no facts set up in tbe complaint tbat would justify tbe court in restraining tbe commissioner who bad been duly appointed under judgments of foreclosure in actions based upon tbe nonpayment of taxes. Tbe plaintiffs allege in their complaint tbat tbey filed answers to tbe tax suits, but complain tbat tbey bad no opportunity to present their defenses to tbe court. Tbe facts appear to tbe contrary. But if there bad been insufficient notice of tbe judgments, application for relief should bave been by motions in tbe cause and not by independent action against tbe commissioner appointed by tbe court. C. S., 600; Fowler v. Fowler, 190 N. C., 536, 130 S. E., 315; Buncombe County v. Penland, 206 N. C., 299, 173 S. E., 609. Tbe judgment dissolving tbe restraining order is Affirmed.