Blackwell v. Dibbrell

• Decision Date: 11 March 1889
• Citation: 9 S.E. 192,103 N.C. 270
• Parties: BLACKWELL. v. DIBBRELL et al.
• Court: North Carolina Supreme Court

9 S.E. 192

103 N.C. 270

BLACKWELL. v. DIBBRELL et al.

Supreme Court of North Carolina

March 11, 1889

In an action on contract, evidence of an estoppel by judgment in a former action is not admissible under the general issue where such judgment was rendered before defendant was required to plead.

John Manning, for appellants.

W. W Fuller and E. C. Smith, for respondent.

AVERY J.

This was a civil action tried before MERRIMON, J., and a jury, on appeal from a justice's judgment, at June term, 1888, of the superior court of Durham county. The plaintiff sued for the recovery of $108.33 for rent of a certain brick prize-room for the months of November and December, 1887. The summons was issued on the 13th day of March, 1888, and tried upon a removal by affidavit from one justice to another, on the 15th day of March, 1888. The defendant pleaded the "general issue, and counter-claims amounting to $89.07." After evidence by the plaintiff tending to establish his debt, the defendant offered to introduce the following evidence: That on the 13th day of March, 1888, the plaintiff had sued out another summons against these defendants in which he claimed the rent due for the same prize-room for the months of January, February, and up to the 13th day of March; that there was judgment for the plaintiff in that action against the defendants, which judgment was satisfied in full; that action was tried, judgment rendered and judgment satisfied before the present suit was tried. It was proven by the plaintiff, and admitted by the defendants that the rent was payable monthly, in advance. Upon objection by the plaintiff his honor held that the evidence could not be received under any plea pleaded by the defendants, and excluded the evidence. Exception by defendants. Defendants moved to be allowed to amend their answer. His honor refused to allow the amendment. Defendants excepted. There was verdict and judgment against the defendants. Motion for new trial for errors alleged. Motion overruled. Appeal by defendants.

The case is before us upon the single point whether his honor erred in excluding the testimony offered on the ground that it was not admissible "in support of any plea pleaded by the defendant." The transcript contains on the subject of the pleadings only the following: "The plaintiff complained for the sum of one hundred and eighty dollars and 33-100, due by defendants on contract. The defendants pleaded the general issue, and counter-claim of $89.07." The defendant contends that the "general issue" in an action of this kind (assumpsit) was non assumpsit, and cites several authorities to show that under the former practice a defendant was allowed under this plea to show the pendency of another action, or even a judgment in another suit, between the same parties, in bar of recovery. We therefore deem it pertinent to quote the language of Justice PEARSON, in Branch v. Houston, Busb. 85, in which he so clearly points out the proper time and manner, under the old rules of pleading, of setting up and showing a want of jurisdiction in the court: "(1) If there be a defect, e. g., a total want of jurisdiction, apparent upon the face of the proceedings, the court will, of its own motion, 'stay, quash, or dismiss' the suit. This is necessary to prevent the court from being forced into an act of usurpation, and compelled to give a void judgment. (2) If the allegation bring the case within the jurisdiction, so that the defect is not apparent, and the general issue is pleaded, the proof not sustaining the allegation, there is a fatal variance, which is ground of nonsuit, e. g., declaration quare clausum fregit in the county of Wake; general issue; proof, trespass on land in the county of Johnston; *** nonsuit, unless affidavit be made according to the statute. (3) If the subject-matter is within the jurisdiction, and there be any peculiar circumstance excluding the plaintiffs or exempting the defendant, it must be brought forward by a plea to the jurisdiction; otherwise there is an implied waiver of the objection, and the court goes on in the exercise of its ordinary jurisdiction." See, also, Clark v. Cameron, 4 Ired. 161; Wait, Act. & Def. 400. Under the system of pleading and practice established by the Code of Civil Procedure, it has been repeatedly held by this court that where the defendant relies on a general denial, in the answer, of the allegations of the complaint, such a variance as the example given by the chief justice must compel the plaintiff to submit to judgment of nonsuit, unless permitted to amend after mistrial upon such terms as the court may impose. And while the forms of action are abolished, and the technical rules of pleading dispensed with, the same principles of law under he both, and must make the old and the new practice and pleading often assimilate.

The pendency of another suit between the same parties and involving the same subject matter, being a circumstance dehors the record, which exempts the defendant from liability, must, under the formal method peculiar to the common law,...