Bro v. Martin Et Ux

• Decision Date: 10 November 1915
• Docket Number: (No. 342.)
• Citation: 86 S.E. 785,170 N.C. 236
• Court: North Carolina Supreme Court
• Parties: ROSENBACHER & BRO. v. MARTIN et ux.

86 S.E. 785

170 N.C. 236

ROSENBACHER & BRO.

v.MARTIN et ux.

(No. 342.)

Supreme Court of North Carolina.

Nov. 10, 1915.

Appeal from Superior Court, Forsyth County; Cline, Judge.

Action by Rosenbacher & Bro. against P. A. Martin and wife. Judgment for defendants, dismissing the action, and plaintiff appeals. Error.

Civil action to recover on an account for goods sold and delivered, brought before a justice of the peace, who heard the same, upon the issue of indebtedness raised by the parties, and gave judgment in favor of the plaintiff for $63.19, with interest and costs. Defendants appealed. In the magistrate's court they had answered to the merits denying the indebtedness, and, as stated, the case was tried on this issue. In the superior court, as the record states, the defendants, without withdrawing their answer by leave of the court first obtained, filed a demurrer to the effect that the plaintiff's name is not set out in the process and complaint (but only a firm name), and therefore there is no plaintiff before the court. The judge sustained the de murrer and dismissed the action, because, as he said, he had no discretion in the matter, believing from the syllabus in Heath v. Morgan, 117 N. C. 504, 23 S. E. 489, that the objection could be raised, as upon demurrer, notwithstanding the answer, or by a motion to dismiss. Judgment dismissing the action was thereupon entered, and plaintiff appealed.

Louis M. Swink and W. Reade Johnson, both of Winston-Salem, for appellant

WALKER, J. (after stating the facts as above). [1] The course pursued was quite irregular practice. The defendant had gone through the justice's court pleading to and trying upon the merits. His answer waived, or, as is sometimes said, overruled, the demurrer. Ransom v. McClees, 64 N. C. 17; Finch v. Baskerville, 85 N. C. 205; Moseley v. Johnson, 144 N. C. 257, 56 S. E. 922.

The defect of parties, if there is one, appeared upon the face of the record, and the objection should have been taken by demurrer in the beginning. Revisal, § 474 (4); Davidson v. Elms, 67 N. C. 228; Machine Co. v. Lumber Co., 109 N. C. 576, 13 S. E. 869.

A defendant cannot demur and answer at the same time. By answering to the merits all defects are waived, except an objection to the jurisdiction of the court or to the defectiveness of the cause of action (Revisal, § 478), which objection can be made at any stage of the case. The judge cited Heath v. Morgan, 117 N. C. 504, 23 S. E. 489, as depriving him of the discretion to allow an amendment, which he would have done had he possessed the power. In that case the court below had overruled the demurrer, there being no answer, and this court sustained it, but without ordering the action to be dismissed and without, also, any intimation that the trial court could not allow an amendment in its discretion, which it clearly had the right to do, as we will presently show, if it would not change substantially the nature of the action, which would not be done here by the proposed amendment. We will advert to one expression in that case before parting with it. The court said:

"The cases of Wall v. Jarrott, 25 N. C. 42, and Lash v. Arnold, 53 N. C. 206, while they sustain judgments taken in the firm name, both admit that if the objection had been to the 'writ' it would have been good. This was evidently the rule under the old practice. And while the Code has made many changes in the forms of actions and mode of procedure, we do not think it has made any change in this respect."

The court evidently overlooked Code, § 273, now Revisal, § 507, to which we will refer again, more at large. The case of Palin v. Small, 63 N. C. 484, which is cited by the court in Heath v. Morgan, supra, was an action of assumpsit, under the old and antiquated system of pleading which has been supplanted by the present more liberal systemof pleading and procedure, and therefore it does not apply now, nor did it decide this point. It held only that there was no material variance between the writ or process and the...