Clement v. Foster

• Decision Date: 16 April 1888
• Court: North Carolina Supreme Court
• Parties: Clement et al. v. Foster et al.

6 S.E. 186

(99 N.C. 255)

Clement et al.

v.Foster et al.

Supreme Court of North Carolina.

April 16, 1888.

Appeal—When Lies—Refusal of Judgment on Default and Pleadings.

An appeal from an order refusing judgment on default and on the pleadings is premature, and must he dismissed.¹

Appeal from superior court, Davie county; John A. Gilmer, Judge.

This was an action by E. L. Gaither and L. H. Clement as administrators of J. H. Clement against Coleman Foster and Samuel Foster. There was an answer by Samuel Foster, Coleman Foster defaulting. From an order re-fusing a motion for judgment on default and on the pleadings plaintiffs bring this appeal.

E. L. Gaither and Batchelor & Devereux, for appellants.

J. A. Williamson, for appellees.

Davis, J. Civil action tried before Gilmer, J., at fall term, 1887, of the superior court of Davie county. The plaintiffs allege that on the 6th day of July, 1882, the defendants executed to J. M. Clement a bond for the payment of the sum of $489.50, of which the following is a copy: "One day after date we or either of us, as joint principals, promise to pay J. M. Clement four hundred and eighty-nine dollars and fifty cents, with interest from date at eight per cent, per annum, interest payable annually on the 6th day of July of each year. Witness our hands and seals, this 6th July, 1882. [Signed] Coleman Foster, [Seal.] Samuel Foster, [Seal.]" That subsequently J. M. Clement, the payee, died intestate, and the plaintiffs E. L. Gaither and L. H. Clement were duly appointed and qualified as his administrators, and that no part of said bond has been paid. Wherefore plaintiffs demand judgment, etc. The defendant Samuel Foster filed the following answer, in substance, (Coleman Foster filed no answer:) That the statements contained in the complaint are untrue, except in so far as the same are admitted, as follows: That on or about the 6th of July, 1882, this defendant met Coleman Foster in Mocksville, who requested this defendant to sign a note to J. M. Clement as surety for him for about the sum mentioned in the note sued upon; and this defendant, being the brother of Coleman Foster, and willing to do him the favor, agreed with him to sign said note as his surety, and accordingly went to the office of said J. M. Clement, and together with said Coleman signed his name to a note which defendant now supposes to be the note sued upon. That the note was not read by defendant, nor read in his hearing; and this defendant avers that he signed the note as surety for his brother, and never heard the words "joint principal" used in connection therewith until the complaint was read over to him; and he denies that he ever contracted with plaintiff's intestate as a joint principal with said Coleman Foster, as alleged in complaint, except in so far as the same may be implied by law by defendant's said act of going with Coleman Foster and signing the note as above set forth. That said note was given, as this defendant is informed, for and on account of money borrowed by the said Coleman Foster from the said J. M. Clement; and this defendant was never requested by Clement or any other person to assume the relation of a joint principal, but, upon the contrary, said Clement well knew at the time of said signing that there was no reason for, and in point of fact this defendant did not knowingly assume the relation of joint principal, but signed the same as surety aforesaid. This defendant further says that as to him the plaintiff's action is barred by the statute of limitations, wherefore he demands judgment, etc. Plaintiffs moved for judgment by default against Coleman Foster, (who filed no answer,) and also moved for judgment upon the complaint and answer against Samuel Foster upon the ground that he could not be heard to contradict the note under seal by parol testimony, and to show that he w...