Barber v. Edwards
| Decision Date | 20 December 1940 |
| Docket Number | No. 750.,750. |
| Citation | 218 N.C. 731,12 S.E.2d 234 |
| Court | North Carolina Supreme Court |
| Parties | BARBER . v. EDWARDS et al. |
Appeal from Superior Court, Durham County; Clawson L. Williams, Judge.
Action on a note by O. D. Barber against C. C. Edwards and another, in which defendant Edwards filed a counterclaim on a judgment against plaintiff. Judgment for plaintiff, and defendant Edwards appeals. On plaintiff's demurrer ore tenus to the counterclaim.
Demurrer sustained, and cause remanded.
Hedrick & Hall, of Durham, for plaintiff.
W. H. Hofler and C. S. Hammond, both of Durham, for defendants.
Plaintiff instituted action August 16, 1939, to recover on a note for $246, executed by defendant C. C. Edwards. Defendant Edwards, on September 7, 1939, answered admitting the execution of the note and his indebtedness thereon to the plaintiff as alleged, but pleaded as a counterclaim a judgment against the plaintiff O. D. Barber in the sum of $1,805.81. Defendant's allegation with respect to the judgment was "that the defendant is now the owner and holder of a judgment against the plaintiff." On the trial the defendant testified he brought the judgment May 19, 1939, but the entry on the judgment docket showed assignment to defendant Edwards August 29, 1939. The court held that defendant had acquired the judgment subsequent to the institution of the action, and that therefore it could not avail him in this action. Peremptory instructions were given the jury for the amount of the note. From verdict and judgment in accord with this ruling, the defendant Edwards appealed.
In this court plaintiff demurred ore tenus to the counterclaim alleged in the answer. By C. S. § 521 (2), it is required that a counterclaim not arising out of plaintiff's claim must be one existing at the commencement of the action. The action was begun August 16, 1939. Defendant filed his answer September 7, 1939. It speaks as of that date. The allegation therein that he is now the owner of the judgment against the plaintiff fails to state that he was the owner of the judgment at the time of the commencement of the action. It is insufficient to show that he had a right to set up the judgment as a counterclaim existing at that time. The demurrer to the defendant's counterclaim must be sustained. Reynolds v. Smathers, 87 N.C. 24; American Nat. Bank v. Northcutt, 169 N.C. 219, 85 S.E. 210; Cody v. Hovey, 216 N.C. 391, 5 S.E.2d 165.
However, the defendant, under the provisions of C.S. § 515, and C.S. §...
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Wells v. Clayton, 744
...defense, or a controverted counterclaim. MacClure v. Accident & Casualty Ins. Co., 229 N.C. 305, 49 S.E.2d 742; Barber v. Edwards, 218 N.C. 731, 12 S.E.2d 234; Jones v. Waldroup, 217 N.C. 178, 7 S.E.2d 366; Williams v. Philadelphia Life Ins. Co., 212 N.C. 516, 193 S.E. 728; Lummus Cotton Gi......
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Goldman Sachs Trust Co. v. Falls
...a set-off or a counterclaim." Commerce Mfg. Co. v. Blue Jeans Corp., 146 F. Supp. 15, 18 (E.D.N.C. 1956) (citing Barber v. Edwards, 218 N.C. 731, 12 S.E.2d 234,234-235 (1940)) (emphasis added). Likewise, defendant cites North Carolina statutes for the proposition that "any claim pending in ......
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Commerce Manufacturing Co. v. Blue Jeans Corp.
...may set up any claim against the plaintiff assigned to him before the action is begun as a set-off or a counterclaim. In Barber v. Edwards, 218 N.C. 731, 12 S.E. 2d 234, the defendant, when sued on a note, undertook to set up as a counterclaim a judgment against plaintiff which had been ass......
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Townsend v. Bentley, 8125DC711
...and there being no dispute as to the claim of the plaintiffs against the defendants, summary judgment was proper. See Barber v. Edwards, 218 N.C. 731, 12 S.E.2d 234 (1940). The defendants also assign error to the court's denial of their motion to amend their answer to assert a counterclaim.......