Nance v. City of Winston-Salem , 229 N.C. 732 ( 1949 )

Barnhill, J.

The election plaintiffs seek to enjoin was held 21 September 1948. Lienee the questions they seek to present on this appeal are now academic. The appeal is therefore dismissed on authority of Eller v. Wall, ante, p. 359, and Penland v. Gowan, ante, p. 449.

But the plaintiffs insist that they, in their complaint, seek also to enjoin the levy of a proposed tax on the residents of the annexed territory, and that therefore the action should not be dismissed but should be retained for the adjudication of the validity of this proposed tax. We do not so construe the complaint.

They allege that if the election is held, they “will be irreparably damaged ... in that their lands and other property located in the territory proposed to be annexed will be subjected to unlawful taxes by the City of Winston-Salem, and the City of Winston-Salem will undertake to collect and will collect said taxes.” This allegation is incorporated in the complaint as an allegation of an element of the damages which will flow from the holding of said election. In no sense is it a statement of fact made as the basis of an independent cause of action or demand for relief. Indeed, at that time defendants were not attempting or threatening to levy a tax on the property in the territory they sought to annex. They were without power or authority so to do until and unless the resolution of annexation was approved by the voters.

No cause of action for the wrongful levy or threatened levy of an unlawful tax is alleged in the complaint. No such cause of action existed at the time this action was instituted. If it now exists it arose after th’e election was held and the results favorable to the annexation declared. Plaintiffs cannot now engraft on this action a cause of action which arose after the institution of this suit and after the hearing in the court below. Hence the motion to be allowed to amend the complaint, filed in this Court, is denied.

Appeal dismissed.