Walker v. City of Charlotte , 268 N.C. 345 ( 1966 )

150 S.E.2d 493 (1966) 268 N.C. 345

Rev. James R. WALKER, Jr.
v.
CITY OF CHARLOTTE and William H. Jamison, Superintendent of Building Inspection of the City of Charlotte.

No. 273.

Supreme Court of North Carolina.

October 19, 1966.

James R. Walker, Jr., Statesville, for plaintiff appellant.

J. W. Kiser, Henry W. Underhill, Jr., Charlotte, for defendants appellees.

PLESS, Justice.

Where a justiciable controversy is alleged—as is the case here—the authorities are unanimous that demurrer does not lie in a case brought under G.S. §§ 1-253-1-267, the Declaratory Judgment Act. With her usual thoroughness, Sharp, J., speaking for this Court in Nationwide Mutual Ins. Co. v. Roberts, 261 N.C. 285, 134 S.E.2d 654, deals with this subject. In that opinion an excerpt from Cabell v. City of Cottage Grove, 170 Or. 256, 130 P.2d 1013, 144 A.L.R. 286, concisely states this rule:

"The test of the sufficiency of a complaint in a declaratory judgment proceeding is not whether the complaint shows that the plaintiff is entitled to the declaration of rights in accordance with his theory, but whether he is entitled to a declaration of rights at all, so that even if the plaintiff is on the wrong side of the controversy, if he states the existence of a controversy which should be settled, he states a cause of suit for a declaratory judgment. And where a complaint in a proceeding for a declaratory judgment stated a justiciable controversy, a demurrer should have been overruled, and after the filing of an answer a decree containing a declaration of right should have been entered."

We find no exceptions to the above rule. Based, of course, on the premise that a justiciable controversy is stated, the authorities hold:

"A demurrer is rarely an appropriate pleading for a defendant to file to a petition for declaratory judgment. Where the plaintiff's pleading sets forth an actual or justiciable controversy, it is not subject to demurrer since it sets forth a cause of action, even though the plaintiff may not be entitled to a favorable declaration on the facts stated in his complaint; that is, in passing on the demurrer, the court is not concerned with the question whether plaintiff is right in a controversy, but only with whether he is entitled to a declaration of rights with respect to the matters alleged," 22 Am. Jur. 956, Declaratory Judgments, Sec. 91.

And in 26 C.J.S. Declaratory Judgments § 141, p. 334, we find:

"[T]he general rule is that where plaintiff's pleading, in an action for a declaratory judgment, sets forth an actual or justiciable controversy, or a bona fide justiciable controversy, it is not subject to demurrer, since it sets forth a cause of action. This is true even though plaintiff is not entitled to a favorable declaration on the facts stated in his complaint, or to any relief, or is wrong in his contention as to his ultimate rights, since, in passing on the demurrer, the court is not concerned with the question whether plaintiff is right in the controversy, but is only concerned with whether he is entitled to a declaration of rights with respect to the matters alleged."

The cause is hereby remanded to the Superior Court of Mecklenburg County and the defendant is allowed 30 days from the filing of this opinion in which to answer the Complaint. The Court will thereupon adjudicate the questions presented by appropriate decree.

Error and remanded.

BOBBITT and SHARP, JJ., concur in result.