Coleman v. . Coleman , 148 N.C. 299 ( 1908 )

The action was properly brought before the Judge, at chambers, if the plaintiffs have any such cause of action as is stated in the complaint. The object of the action is not to enforce the payment of a "money demand," but to compel the performance by the defendant, as Treasurer of the county, of a public duty. Because in the discharge of that duty he must deliver the fund to the plaintiffs does not make it a money demand. If the plaintiffs are entitled to the possession of the "road fund," as they allege, their action is not one to enforce the payment of money to themselves, which money they could recover by judgment and execution in an ordinary action for that purpose, but it is of a very different nature, and mandamus is the appropriate remedy. They would get the money, it is true, but not because the defendant was indebted to them, but because the law required him to deliver it to them, and he had failed and refused to discharge the duty imposed upon him. We think this view of the law is sustained by several decisions of this Court in like cases. Martin v. Clark, 135 N.C. 178;Eubanks v. Turner, 134 N.C. 80; Jones v. Commissioners,135 N.C. 218; Audit Co. v. McKenzie, 147 N.C. 461. If there are issues of fact to be tried, or the case has been improperly brought before the Judge at chambers, it should, by order of the Judge, be transferred to the Superior Court for trial at term, and not dismissed. Eubank v. Turner, 134 N.C. 80; Jones v. Commissioners, 135 N.C. 218. (302) But we do not think the plaintiffs have stated any cause of action in their complaint. The act of 1899, ch. 58, as amended by the act of 1905, ch. 161, does not authorize them to take possession of the fund, but the Treasurer is its rightful custodian. It is clear that the plaintiffs had no power under those acts to disburse the road fund. That duty is required to be performed by the County Treasurer, upon the certificate of the "County Road Superintendent" and the approval and order or orders of the plaintiffs. If any one is in law aggrieved by the failure or refusal of the Treasurer to discharge this duty, a mandamus will lie to compel its performance.

The plaintiffs moved to amend their complaint, but, as the motion was denied and its refusal was strictly within the discretion of the Judge, we cannot review the exercise of that discretion in this Court.

There was no error in sustaining the demurrer and dismissing the action.

Affirmed.