In re Eubanks

8 Citing cases

  1. Consumers Power v. Power Co.

    285 N.C. 434 (N.C. 1974)   Cited 94 times
    Construing N.C.G.S. § 1-277

    This being so, an action for a declaratory judgment will lie only in a case in which there is an actual or real existing controversy between parties having adverse interests in the matter in dispute. Etheridge v. Leary, 227 N.C. 636, 43 S.E.2d 847; Tryon v. Power Co., supra; Wright v. McGee, 206 N.C. 52, 173 S.E. 31; Light Co. v. Iseley, 203 N.C. 811, 167 S.E. 56; In re Eubanks; 202 N.C. 357, 162 S.E. 769; 16 Am. Jur., Declaratory Judgments, section 9; 1 C.J.S., Actions, section 18; Anderson on Declaratory Judgments, section 22; Borchard on Declaratory Judgments (2d Ed.), 40-48. It necessarily follows that when a litigant seeks relief under the declaratory judgment statute, he must set forth in his pleading all facts necessary to disclose the existence of an actual controversy between the parties to the action with regard to their respective rights and duties in the premises. Tryon v. Power Co., supra; Light Co. v. Iseley, supra; 16 Am. Jur., Declaratory Judgments, section 64; 1 C.J.S., Actions, section 18; Anderson on Declaratory Judgments, section 80. If he fails to do this, the other party cannot confer jurisdiction on the court to enter a declaratory judgment by failing to demur to the insufficient pleading.

  2. Angell v. Raleigh

    267 N.C. 387 (N.C. 1966)   Cited 10 times

    This being so, an action for a declaratory judgment will lie only in a case in which there is an actual or real existing controversy between parties having adverse interests in the matter in dispute. Etheridge v. Leary, 227 N.C. 636, 43 S.E.2d 847; Tryon v. Power Co., supra; Wright v. McGee, 206 N.C. 52, 173 S.E. 31; Light Co. v. Iseley, 203 N.C. 811, 167 S.E. 56; In re Eubanks, 202 N.C. 357, 162 S.E. 769; 16 Am. Jur., Declaratory Judgments, section 9; 1 C.J.S., Actions, section 18; Anderson on Declaratory Judgments, section 22; Borchard on Declaratory Judgments (2d Ed.), 40-48."

  3. Duke v. Shaw, Commissioner of Revenue

    247 N.C. 236 (N.C. 1957)   Cited 2 times

    It does not authorize the filing of a petition in the Superior Court seeking an advisory opinion on the correctness of an executive interpretation of a statute. Boswell v. Boswell, 241 N.C. 515, 85 S.E.2d 899; Poore v. Poore, 201 N.C. 791, 161 S.E. 532; In re Eubanks, 202 N.C. 357, 162 S.E. 769; Person v. Board of State Tax Comrs., 184 N.C. 499, 115, S.E. 336; Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117, 70 L.Ed. 494; 42 Am. Jur. 590. The 1955 Legislature gave a person charged with tax liability the benefit of this statute.

  4. Lide v. Mears

    231 N.C. 111 (N.C. 1949)   Cited 83 times
    Explaining that declaratory judgments "declar[e] and establish the respective rights and obligations of adversary parties in cases of actual controversies without either of the litigants being first compelled to" act in a way that may result in a violation of the other party's rights or a repudiation of a party's own obligations

    This being so, an action for a declaratory judgment will lie only in a case in which there is an actual or real existing controversy between parties having adverse interests in the matter in dispute. Etheridge v. Leary, 227 N.C. 636, 43 S.E.2d 847; Tryon v. Power Co., supra; Wright v. McGee, 206 N.C. 52, 173 S.E. 31; Light Co. v. Iseley, 203 N.C. 811, 167 S.E. 56; In re Eubanks, 202 N.C. 357, 162 S.E. 769; 16 Am.Jur., Declaratory Judgments, section 9; 1 C.J.S., Actions, section 18; Anderson on Declaratory Judgments, section 22; Borchard on Declaratory Judgments (2d Ed.), 40-48. It necessarily follows that when a litigant seeks relief under the declaratory judgment statute, he must set forth in his pleading all facts necessary to disclose the existence of an actual controversy between the parties to the action with regard to their respective rights and duties in the premises. Tryon v. Power Co., supra; Light Co. v. Iseley, supra; 16 Am. Jur., Declaratory Judgments, section 64; 1 C.J.S., Actions, section 18; Anderson on Declaratory Judgments, section 80. If he fails to do this, the other party cannot confer jurisdiction on the court to enter a declaratory judgment by failing to demur to the insufficient pleading.

  5. Taos County Board of Education v. Sedillo

    44 N.M. 300 (N.M. 1940)   Cited 28 times
    In Taos County Board of Education v. Sedillo, 44 N.M. 300, 101 P.2d 1027, 1032, in a case decided only a few years following enactment of this legislation, the likelihood that this language would soon be relied upon as constituting a general immunity on the part of the state to be sued under the provisions of the act was sensed.

    Many decisions and texts support the conclusion that under section 1 of our act an actual controversy must exist to confer jurisdiction. Borchard on Declaratory Judgments, Ch. II, pages 23 to 50; 16 Am.Jur. 282, § 9, under "Declaratory Judgments"; Aetna Life Ins. Co. v. Haworth, 299 U.S. 536, 57 S.Ct. 190, 81 L.Ed. 395; 108 A.L.R. 1000; Garden City News v. Hurst, 129 Kan. 365, 282 P. 720; Axton v. Goodman, 205 Ky. 382, 265 S.W. 806; County Board of Education v. Borgen, 192 Minn. 512, 257 N.W. 92; Ex parte Eubanks, 202 N.C. 357, 162 S.E. 769; Calcutt v. McGeachy, 213 N.C. 1, 195 S.E. 49; and annotations in 87 A.L.R. 1233, 114 A.L.R. 1361. There has been great diversity of opinion, however, over the question of just what is an "actual controversy" for purposes of jurisdiction under the act.

  6. Allison v. Sharp

    209 N.C. 477 (N.C. 1936)   Cited 18 times
    In Allison v. Sharp, 209 N.C. 477, 184 S.E. 27, the Court held that the Uniform Declaratory Judgment Act affords a means of testing the validity of a statute requiring persons presenting themselves for registration to prove to the satisfaction of the registrar their ability to read and write any section of the Constitution, plaintiffs and all the people of the State being vitally affected by the statute.

    To the same effect see Carolina Power and Light Co. v. Iseley, 203 N.C. 811. Nor is an ex parte proceeding brought to determine the petitioner's racial status within the scope or purview of the act. Ex parte Eubanks, 202 N.C. 357. In the T.V.A. decision, delivered by Chief Justice Hughes of the U.S. Supreme Court (17 February, 1936), the same principle is declared: "The judicial power does not extend to the determination of abstract questions. . . . Claims based merely upon `assumed potential invasions' of rights are not enough to warrant judicial intervention.

  7. Light Co. v. Iseley

    203 N.C. 811 (N.C. 1933)   Cited 34 times
    Acknowledging that “legal rights and liabilities” can arise “under a statute”

    An ex parte proceeding in which the petitioner alone seeks to have his social status only determined by judicial decree is not within the scope of the act. In re Eubanks, 202 N.C. 357, 162 S.E. 759. Nor can an action instituted under the authority and pursuant to the provisions of the act be maintained, when only a theoretical problem is presented for judicial solution. Poore v. Poore, 201 N.C. 791, 161 S.E. 532.

  8. Hutchinson v. Commissioners

    90 S.E. 892 (N.C. 1916)   Cited 5 times
    In Hutchinson v. Comrs., 172 N.C. 844, the board of commissioners of Iredell County, upon notice duly received, paid to a subcontractor (Lon G. Crouse Company) its claim for painting a county home out of funds retained and due the original contractor at the time notice was received.

    Affirmed. Cited: Noland Co. v. Trustees, 190 N.C. 252, 253 (c); Trust Co. v. Construction Co., 191 N.C. 666 (c); Mfg. Co. v. Blaylock, 192 N.C. 412, 414 (c); Fidelity Co. v. Board of Education, 202 N.C. 357 (c). (846)