Abernethy v. Burns

• Decision Date: 04 November 1936
• Docket Number: 316.
• Parties: ABERNETHY v. BURNS et al.
• Court: North Carolina Supreme Court

188 S.E. 97

210 N.C. 636

ABERNETHY v. BURNS et al.

No. 316.

Supreme Court of North Carolina

November 4, 1936

Appeal from Superior Court, Catawba County; J. H. Clement, Judge.

Action by R. O. Abernethy against W. W. Burns and others. From a judgment of nonsuit, plaintiff appeals in forma pauperis.

Reversed.

In action for abuse of process, evidence disclosing that plaintiff was arrested on false charge of trespass at instance of defendants, that plaintiff was abused by officers on instructions from defendants, that he was assaulted by defendants' agent, while under indictment, that trial in municipal court was coram non judice, that on appeal nolle prosequi was entered, that plaintiff was greatly injured, and that action was not barred by statute of limitation, held to make case for jury.

Civil action to recover damages for alleged (1) malicious prosecution; (2) abuse of process; (3) trespass; and (4) wrongful conversion.

The answer denies the material allegations of the complaint, sets up estoppel by judgment, and pleads the statute of limitations.

From a judgment of nonsuit entered at the close of plaintiff's evidence, he appeals, assigning errors.

R. O Abernethy, in pro. per.

J. L Murphy, Jr., D. M. McComb, Jr., and Thos. P. Pruitt, all of Hickory, for appellees.

STACY Chief Justice.

This is the same case that was before us at the Spring term, 1934 reported in 206 N.C. 370, 173 S.E. 899, 900. There, it was said in regard to the plaintiff, a layman, trying his own lawsuit: "He may not get to first base, but he is entitled to come to the bat." Continuing the simile, he did come to the bat at the May term, 1936, and was called out on strikes. He again appeals, complaining at the rulings of the umpire.

In his application to appeal in forma pauperis, plaintiff avers he "is advised by two counsel learned in the law that there was error of law in the ruling of the court below." Just why he is advised and not represented by counsel is not apparent, unless perhaps the advice given was of the curbstone variety or gratuitous kind.

A word about the record: Plaintiff was allowed 40 days within which to prepare and serve his statement of case on appeal, and the defendants given 40 days thereafter to serve countercase or file exceptions. The plaintiff duly served his case within the time. No exceptions were filed by the defendants and no countercase was served by them. The plaintiff's statement of case, therefore, became the "case on appeal." C.S.Supp.1924, § 643; State v. Ray, 206 N.C. 736, 175 S.E. 109; State v. Humphrey, 186 N.C. 533, 120 S.E. 85; Carter v. Bryant, 199 N.C. 704, 155 S.E. 602; Barber v. Justice, 138 N.C. 20, 50 S.E. 445. It is far from "a concise statement of the case," and doubtless out of line with what transpired before the trial court, nevertheless, the defendants, by their silence or failure to return it with objections, have consented that "it shall be deemed approved." C.S.Supp.1924, § 643. It imports verity, and we are bound by it. State v. Brown, 207 N.C. 156, 176 S.E. 260. The defendants say in their brief: "Unless the Court is thoroughly familiar with the history of all this litigation, it would be very difficult, from the record and appellant's brief, to know at times what he is talking about." This is quite true. The record is involved, couched in infelicitous terms, and difficult to comprehend. The conciseness of the transcript, as well as its clarity, doubtless would have been aided by a counterstatement of the case. But the time for this has passed. State v. Ray, supra. We must take it as it is. State v. Humphrey, supra.

Without undertaking to detail the evidence in the peculiar language of the record, suffice it to say plaintiff and his witnesses seem to testify, in substance, and apparently without objection: (1) That plaintiff was arrested on a false charge of trespass at the instance of the defendants; (2) that he was abused and mistreated by the officers on instructions from Little and Burns, the defendants; (3) that he was assaulted by defendants' agent, while under indictment; (4) that the trial in the municipal court was coram non judice; (5) that on appeal to the superior court a nolle prosequi was entered; (6) that plaintiff has been greatly injured thereby, undergone "great suffering," etc.; and (7) that the action is not barred by the statute of limitations.

Thus, on the record as it appears here, the plaintiff's evidence, taken in its most favorable light, would appear to be sufficient to carry the case to the jury. The proceeding in the municipal court, if, indeed, it were coram non judice, was a nullity, and the judgment rendered therein, void. Greene v. Stadiem, 197 N.C. 472, 149 S.E. 685; State v. Baxter, 208 N.C. 90, 179 S.E. 450. Of course, we do not say such is the case-only that there is evidence on the record tending to show it. A void judgment may be attacked either directly (Oliver v. Hood, 209 N.C. 291, 183 S.E. 657) or collaterally (Dunn v. Wilson, 210 N.C. 493, 187 S.E. 802; McKee v. Angel, 90 N.C. 60). It could not avail as the basis for a plea of estoppel. Harrell v. Welstead, 206 N.C. 817, 175 S.E. 283. Hence the case of Price v. Stanley, 128 N.C. 38, 38 S.E. 33, cited and relied upon by defendants, is not controlling.

The nolle prosequi subsequently taken in the superior court was a sufficient termination of the prosecution to support an action for malicious prosecution based thereon. Dickerson v. Atlantic Refining Co., 201 N.C. 90, 159 S.E. 446; Winkler v. Blowing Rock Lines, ...